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[ { "docid": "1545091", "title": "", "text": "from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Thus the exemption covers two broad categories of information: (1) trade secrets; and (2) information which is (a) commercial or financial, and (b) obtained from a person; and (c) privileged or confidential. While there is substantial overlap in the pleadings, the defendant and defendant-intervenors AT & T and Northern Telecom rely primarily on the confidential commercial information aspect of Exemption 4; defendant-intervenor U.S. West focuses primarily on the trade secret aspect of Exemption 4; and defendant-inter venor Bellcore relies on both of these rationales for exempting the materials from disclosure. (B) The Material Sought Was Properly Withheld Under Exemption j of the FOIA Because It Is Confidential Commercial Information Exemption 4 protects (1) commercial or financial information; (2) obtained from a person; that is (3) privileged or confidential. See, e.g., Gulf & Western Indus. v. U.S., 615 F.2d 527, 529 (D.C.Cir.1979). The information plaintiff seeks here satisfies these three requirements. The terms “commercial” and financial” should be given their ordinary meanings under Exemption 4. Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C.Cir.1983). The contested information in this case is clearly commercial, and this issue is not disputed. The information was obtained “from a person” within the meaning of Exemption 4 because “person” refers to a wide range of entities including corporations, associations and public or private organizations other than agencies. Critical Mass Energy Project v. NRC, 830 F.2d 278, 281 n. 15 (D.C.Cir.1987) (“Critical Mass I”). Here, the information sought was provided to the FCC from various corporations and commercial entities. The plaintiff does not dispute this issue. The critical question in this case is whether the materials sought are confidential or privileged. In National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974), the D.C. Circuit held that this criterion is satisfied if either (1) disclosure of the information sought is likely to impair the government’s ability to obtain necessary information in the future; or (2) disclosure is likely to cause substantial harm to the competitive position of the person from whom" } ]

[ { "docid": "17294802", "title": "", "text": "in the present case are not defective for failing to supply a definition. Babcock and Carter’s assertion that the scope of the request is overbroad has now been addressed by the court’s decision that the modified subpoena does not subject them to an undue burden. Ill The next question presented is whether the subpoenas and deposition notices should be quashed pursuant to Rule 45(c)(3)(A)(iii) because they require production of documents that are protected by the attorney-client privilege, by the work product doctrine under Rule 26(b)(3), and by the Texas journalist’s privilege. Although Williams advances several responsive arguments, some of which address the merits of these assertions, the court need only reach his contention that Babcock and Carter have failed to comply with Rule 45(d)(2), which provides: When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made éxpressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. This provision is necessary “to provide a party whose discovery is constrained by a claim of privilege or work product protection with information sufficient to evaluate such a claim and to resist if it seems unjustified.” Fed.R.Civ.P. 45(d)(2) advisory committee’s note. To reject Babcock and Carter’s argument that the subpoenas should be quashed because they seek production of protected matters, it is sufficient to point to their obligation under Rule 45(d)(2) to lodge objections on the basis of the attorney-client privilege, the work product doctrine, and the journalist’s privilege that are “supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” When those objections have been made, the court can then decide whether quashal is warranted under Rule 45(a)(3)(A)(iii). Williams maintains that Babcock’s and Carter’s failure to comply with Rule 45(d)(2) results in waiver of these protections. The court disagrees in the context of the present case. Williams" }, { "docid": "22463190", "title": "", "text": "conclude, therefore, that the NRC has the authority to conduct this particular investigation and to obtain the information sought by the subpoena. III. Privilege Respondents also argue that the district court erred in holding that they had failed to establish their claims of privilege. Whether we consider the district court to have rejected the claim of privilege narrowly as a defense to enforcement of the subpoena or more broadly as a defense to the production of particular documents claimed to be privileged, we disagree with Respondents’ claims. Privileged documents are exempt from disclosure. Morton Salt, 338 U.S. at 653, 70 S.Ct. at 369. The party asserting the privilege must establish the essential elements of the privilege. United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir.1995); von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987). To invoke the attorney-client privilege, a party must demonstrate that there was: (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976); Adlman, 68 F.3d at 1499; United States v. Abrahams, 905 F.2d 1276, 1283 (9th Cir.1990). Respondents also assert a work-product privilege. To invoke this privilege, a party generally must show that the documents were prepared principally or exclusively to assist in anticipated or ongoing litigation. See Fed.R.Civ.P. 26(b)(3); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y.1993). To facilitate its determination of privilege, a court may require “an adequately detailed privilege log in conjunction with evidentiary submissions to fill in any factual gaps.” Bowne, 150 F.R.D. at 474; see also In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir.1992). The privilege log should: identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from" }, { "docid": "11548337", "title": "", "text": "raised by these privileges in turn. The D.C. Circuit has consistently rejected the concept of a “limited waiver.” Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981). The court has rebuffed the notion that a client may waive the attorney-client privilege “in circumstances where disclosure might be beneficial while maintaining it in other circumstances where nondisclosure would be beneficial.” In re Subpoenas Duces Te-cum (Fulbright & Jaworski), 738 F.2d 1367, 1370 (D.C.Cir.1984); see also Permian, 665 F.2d at 1222 (“.We believe that the attorney-client privilege should be available only at the traditional price: a liti gant who wishes to assert confidentiality must maintain genuine confidentiality.”). The Navajo Nation is clearly bound by the terms of the CAPO, to which it is a party. The CAPO and stipulation expressly state that disclosure of documents in that case will not waive privileges “in any other present or future litigation.” However, as the Court of Federal Claims noted, paragraph 17 of the CAPO clearly outlines procedures for claiming that documents are protected by attorney-client privilege or are attorney work product. The CAPO does not require that such documents be produced and, rather, permits the parties to provide a factual, non-privileged proffer regarding the documents’ contents. This Court is persuaded by the Court of Federal Claims’ interpretation of the CAPO. That court held that the CAPO’s production provisions did not apply to privileged documents. 46 Fed. Cl. at 360; see also Navajo Nation v. Peabody Coal Co., 7 Fed.Appx. 951, 956, 2001 WL 312117 (Fed.Cir.2001) (“The CAPO was not meant to provide similar protection for privileged information.... Notably, the CAPO referred to confidential and privileged information as two separate categories of information... .”). Thus, Peabody and SCE have waived any attorney-client privilege for documents produced pursuant to the CAPO. In noting that there was “no doubt” that the CAPO did not apply to privilege claims, the Court of Federal Claims cited to the resolution of the November 1996 discovery disputes between Peabody and the Navajo Nation, which stemmed from Peabody’s assertion that certain documents were privileged. Id. Thus, in November 1996, the Court" }, { "docid": "12910101", "title": "", "text": "bore the burden of showing that “the fee and payment information sought by the grand jury subpoena would in fact cause the disclosure of protected confidential communications.” The government argues that the Fourth Circuit case suggesting a hearing requirement lacks precedential value in this circuit and was based on a Ninth Circuit case which since has been repudiated by that circuit. According to the government, the attorneys failed to offer specific reasons in their memorandum for quashing the subpoena. With respect to the claimed attorney-client privilege, the government insists that it attaches only when the confidential nature of the documents is at issue, not merely because documents may have the potential to harm the client. The government emphasizes that neither it nor the court construed the subpoena to demand anything more than fee arrangements; no confidential documents were requested. The government also states that, as it suggested to the district court, alternatives existed to the actual appearance of the attorney at the grand jury hearing. The subpoena did not force the client to obtain new counsel, and, therefore, the government concludes that the subpoena did not violate the sixth amendment. II. At the outset, we note that appellants base their argument that a hearing must be held to determine whether the government has shown “a purpose, relevance, and an important need” on In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir.), vacated, 697 F.2d 112 (4th Cir.1982). In Harvey, the court held that the government must show, inter alia, “an important need for the information sought.” Id. at 1011. Harvey is but a shaky foundation for the attorneys. A subsequent Fourth Circuit case has cast doubt upon Harvey. See United States v. Ricks, 776 F.2d 455, 465 (4th Cir.1985), reh’g granted on other grounds, 784 F.2d 544, reh’g, 802 F.2d 731 (4th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 705 (1986); see also In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 247 n. 4 (2d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986) (discussing" }, { "docid": "23681938", "title": "", "text": "printed 817 F.2d 64 (9th Cir.1987), as well as an attorney’s advice in response to such disclosures. In re Fischel, 557 F.2d 209, 211 (9th Cir.1977). To prevent abuse and assure the availability of relevant evidence to the prosecutor, the privilege is limited to “only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). The party asserting the attorney-client privilege has the burden of proving that the privilege applies to a given set of documents or communications. In re Grand Jury Subpoenas (Hirsch), 803 F.2d at 496. To meet this burden, a party must demonstrate that its documents adhere to the essential elements of the attorney-client privilege adopted by this court. Fischel, 557 F.2d at 211. In essence, the party asserting the privilege must make a prima facie showing that the privilege protects the information the party intends to withhold. We have previously recognized a number of means of sufficiently establishing the privilege, one of which is the privilege log approach. Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir.1989). To make its prima facie showing that the attorney-client privilege applied to .the eleven documents, the Corporation submitted a privilege log and affidavits regarding their confidential nature. The government argues that these are insufficient to fulfill.the Corporation’s burden. However, in Dole v. Milonas, we found that the privilege log was a means by which a party could protect its confidential communications without frustrating the prosecutor’s legitimate inquiries. 889 F.2d at 890. The log submitted by the Corporation provides essentially the same — and in some aspects more — information as the one described in Dole which we found to be sufficient to establish the attorney-client privilege. In Dole, the log identified (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document" }, { "docid": "21729806", "title": "", "text": "attorney and client. Brinton v. Dep’t of State, 636 F.2d 600, 603 (D.C.Cir.1980). See also S.E.C. v. Bilzerian, 2001 WL 1801157, at * 1 (D.D.C. June 15, 2001). The standard to be applied is whether the client reasonably intended the attorney to keep the communication confidential. Id. (quoting In re Ampicillin Antitrust Litigation., 81 F.R.D. 377, 389 (D.D.C. 1978)). Before a court turns to the question of privilege, the subpoenaed party must comply with the requirements of Fed.R.Civ.P. 45(d)(2) which provides: When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim. The rule is obviously mandatory. Failure to comply with it “is deemed to waive the underlying privilege claim.” In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001) and cases cited therein. Womble Carlyle excuses itself from compliance with this rule on the grounds that the nature of the documents is well-understood, and a privilege log would not further elucidate their nature or might, on the other hand, disclose the very information claimed to be privileged. Sur-Reply Brief in Opposition to Plaintiffs Motion to Compel at 12-13. But, as I have explained, the subpoena seeks “[c]hecks(s), drafts(s), wire transfer advice(s), notice(s) and/or confirmation(s), debit notice(s), credit notice(s), and letters relating to any payment of retainer, fees and/or costs for or on behalf of Douglas R. Colkitt.” P. Mot. at Exhibit B. It is impossible to understand how any such materials could possibly fall within the attorney-client privilege as I have defined it. The apparent inapplicability of the privilege on its face increases, rather than decreases, the need for a privilege log. Womble Carlyle nevertheless attempts to compare itself to an attorney who was subpoenaed to testify and produce documents before the grand jury in order to identify those people, unknown to the government, who had paid the attorney legal" }, { "docid": "23129596", "title": "", "text": "the disclosure from constituting a waiver of the privilege; it merely obligates the recipient to comply with the terms of any confidentiality agreement. See, e.g., Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d at 1426-30 (corporate disclosure to Department of Justice under agreement by Department to keep information confidential waived attorney-client privilege and work-product protection); In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846-47 (8th Cir.1988) (disclosure of tape to adversaries during settlement discussions waived work-product protection despite non-disclosure agreement); Permian Corp. v. United States, 665 F.2d at 1217-22 (corporate disclosure of privileged documents to SEC under apparent assurances of confidentiality waived the attorney-client privilege). See also Khandji v. Keystone Resorts Management, Inc., 140 F.R.D. 697, 699-700 (D.Colo.1992) (work-product protection would be waived even if disclosure was pursuant to a confidentiality agreement, but in such a case aggrieved party might assert contract claim). As for the work-produet immunity invoked by AmBase for some of the documents, as noted, the disclosure of work-product to another person with a shared interest in the material, even if not a litigation interest, does not waive the privilege unless the circumstances of the disclosure created a significant possibility that the material would ultimately be disclosed to an adversary. AmBase, however, disclosed the materials to its adversaries in Robitaille, and hence the disclosure necessarily waived the work-product immunity not only in that litigation but. also in this lawsuit. See, e.g., Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d at 1428-30; In re Chrysler Corp. Overnight Evaluation Program Litig., 860 F.2d at 846-47; In re Subpoenas Duces Tecum, 738 F.2d at 1372-75; In re Worlds of Wonder Sec. Litig., 147 F.R.D. at 211-13. In resisting these conclusions, AmBase relies principally upon the decision in Teachers Ins. & Annuity Ass’n of America v. Shamrock Broadcasting Co., 521 F.Supp. 638 (S.D.N.Y.1981). In particular, AmBase cites Judge Conner’s conclusion that if a corporation produces privileged documents in response to an SEC subpoena but does so “under a protective order, stipulation or other express reservation of the producing party’s claim of privilege as" }, { "docid": "19973161", "title": "", "text": "exempt, the information must reveal some aspect of the grand jury’s investigation. Id. Additionally, the connection to the investigation must be apparent, especially for documents created independent of and extrinsic to the grand jury investigation. Washington Post Co. v. U.S. Dep’t of Justice, 863 F.2d 96, 100 (D.C.Cir.1988). Lacking this connection, the information must be disclosed. Cozen does not claim that the document withheld by the FBI under Exemption 3 is not protected grand jury material. Rather, it contends Treasury has not adequately described the document so that one could determine whether it qualifies as secret grand jury information. The document is an intra-agency communication of information provided pursuant to a grand jury subpoena. Identifying what information was produced in response to a grand jury subpoena certainly would reveal what the grand jury was investigating. Thus, Exemption 3 was properly invoked. D. Exemption 4 — Commercial or Privileged Information Exemption 4 protects privileged or confidential information supplied to an agency by third parties that contains commercial or financial information, or trade secrets. 5 U.S.C.A. § 552(b)(4). The information covered by this exemption is generated by third parties who provided it to the agency because they were required or requested to do so. Judicial Watch, Inc., v. FDA, 449 F.3d 141, 148 (D.C.Cir.2006). Hence, unlike most information subject to an agency’s control, materials implicating Exemption 4 are not developed within the agency. Id. To qualify as Exemption 4 material, the information must: (1) be either trade secrets, or commercial or financial information; (2) have been obtained from some source outside the agency; and (3) qualify as privileged or confidential. 5 U.S.C.A. § 552(b)(4). The exemption protects both the interest of the government in garnering useful information and the interest of those submitting data in preventing competitive disadvantages that could result from dissemination of the information. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 877 (D.C.Cir.1992). In essence, the inquiry is whether disclosure of material generated by the third party will discourage or curtail future reliable submissions. Critical Mass, 975 F.2d at 878 (citing Washington Post Co. v. U.S." }, { "docid": "12910100", "title": "", "text": "explore the relation between the information sought and the attorney-client privilege, to inquire into the documents’ contents to determine whether they contain protected information, and to assess the government’s purpose and need for the information. Second, the attorneys argue that the subpoena impinged on important interests. Although acknowledging that the attorney-client privilege usually does not protect fee information, the attorneys claim the relevancy and existence of an exception when the information would “implicate the client in the very criminal activity for which legal advice was sought.” See In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). The attorneys also argue that the issuance of subpoenas to attorneys raises the possibility of their withdrawal from representation, and destroys the client’s constitutional right to retain counsel of choice. The government responds by noting that the local rules for the district court state that motions submitted with memoranda are to be decided without a hearing. More importantly, the government contends that the attorneys bore the burden of showing that “the fee and payment information sought by the grand jury subpoena would in fact cause the disclosure of protected confidential communications.” The government argues that the Fourth Circuit case suggesting a hearing requirement lacks precedential value in this circuit and was based on a Ninth Circuit case which since has been repudiated by that circuit. According to the government, the attorneys failed to offer specific reasons in their memorandum for quashing the subpoena. With respect to the claimed attorney-client privilege, the government insists that it attaches only when the confidential nature of the documents is at issue, not merely because documents may have the potential to harm the client. The government emphasizes that neither it nor the court construed the subpoena to demand anything more than fee arrangements; no confidential documents were requested. The government also states that, as it suggested to the district court, alternatives existed to the actual appearance of the attorney at the grand jury hearing. The subpoena did not force the client to obtain new" }, { "docid": "10995486", "title": "", "text": "document 19 S Rule 26(b)(5), Fed.R.Civ.P., provides, When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Defendants claim the documents herein at issue are protected by one of two legal privileges: attorney-client and work-product. a. The Attorney-Client Privilege “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981) (citing 8 J. WigmoRE, Evidence § 2290 (McNaughton rev. 1961)). The privilege ‘“protects confidential disclosures made by a client to an attorney in order to obtain legal advice,’ as well as an attorney’s advice in response to such disclosures.” In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992) (citations omitted); see also Upjohn, supra, 449 U.S. at 390, 101 S.Ct. at 683 (“the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”); United States v. Billmyer, 57 F.3d 31, 36 (1st Cir.1995) (“the privilege is primarily designed to protect communications by the client to the lawyer in order to procure legal advi[c]e.”). It is widely recognized that the purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn, supra, 449 U.S. at 389, 101 S.Ct. at 682; Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 883 (1st Cir.1995). The party asserting the attorney-client privilege has the burden of proving that the privilege protects the documents or communications in question. Town of" }, { "docid": "23579735", "title": "", "text": "28. In other words, a joint defense agreement may be formed only with respect to the subject of potential or actual litigation. Polycast Tech. Corp. v. Uniroyal, Inc., 125 F.R.D. 47, 50 (S.D.N.Y.1989). Lawyer’s affidavit avers that his three clients (Oldco, Roe, and Moe) entered into an oral joint defense agreement in 1990, at which time no particular litigation or investigation was in prospect. The agreement thereafter remained in effect, Lawyer says, attaching ex proprio vigore to all matters subsequently arising (including the current grand jury investigation). The law will not countenance a “rolling” joint defense agreement of this limitless breadth. The rationale for recognizing joint defense agreements is that they permit parties to share information pertinent to each others’ defenses. See Hunydee v. United States, 355 F.2d 183, 185 (9th Cir.1965). In an adversarial proceeding, a party’s entitlement to this enhanced veil of confidentiality can be justified on policy grounds. But outside the context of actual or prospective litigation, there is more vice than virtue in such agreements. Indeed, were we to sanction the intervenors’ view, we would create a judicially enforced code of silence, preventing attorneys from disclosing information obtained from other attorneys and other attorneys’ clients. Common sense suggests that there can be no joint defense agreement when there is no joint defense to pursue. We so hold. B. Fed.R.Civ.P. 45(d)(2). As an alternate ground for our decision, we note that the motion to quash was properly denied because the intervenors failed to present sufficient information with respect to the items to which their claim of privilege attaches. The Civil Rules specifically provide that: When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim. Fed.R.Civ.P. 45(d)(2). The operative language is mandatory and, although the rule does not spell out the sufficiency requirement in detail, courts consistently have held" }, { "docid": "21729805", "title": "", "text": "their disclosure would reveal the client’s confidential communications to the attorney. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). As I wrote in Evans v. Atwood, 177 F.R.D. 1 (D.D.C.1997): This Circuit, however, more narrowly defines the attorney-client privilege to protect from disclosure the communications made by the client to the attorney for the purpose of seeking legal advice. Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 617 (D.C.Cir.1997). The privilege protects the communications made by the attorney to the client only insofar as the attorney’s communications disclose the confidential communication from the client. Brinton v. Department of State, 636 F.2d 600, 603-604 (D.C.Cir.1980). See Schlefer v. United States, 702 F.2d 233, 244 (D.C.Cir.1983); Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980); Mead Data Central v. United States Department of the Air Force, 566 F.2d 242, 253 (D.C.Cir. 1977). Id. at 3. Moreover, the privilege only applies when the information is the product of an attorney-client relationship and is maintained as confidential between the attorney and client. Brinton v. Dep’t of State, 636 F.2d 600, 603 (D.C.Cir.1980). See also S.E.C. v. Bilzerian, 2001 WL 1801157, at * 1 (D.D.C. June 15, 2001). The standard to be applied is whether the client reasonably intended the attorney to keep the communication confidential. Id. (quoting In re Ampicillin Antitrust Litigation., 81 F.R.D. 377, 389 (D.D.C. 1978)). Before a court turns to the question of privilege, the subpoenaed party must comply with the requirements of Fed.R.Civ.P. 45(d)(2) which provides: When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim. The rule is obviously mandatory. Failure to comply with it “is deemed to waive the underlying privilege claim.” In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001) and cases cited therein. Womble Carlyle" }, { "docid": "5093615", "title": "", "text": "motion to quash, also seeking Rule 11 sanctions. Third party subpoenants, CDFA and USDA, have not filed any objections to the subpoenas. Upjohn filed its opposition brief, Hygieia its reply brief. The parties subsequently filed a Stipulation Regarding Discovery Disagreement pursuant to E.D.Cal.L.R. 251. In addition, the parties have each filed two supplemental briefs in response to the aforementioned requests by this court. DISCUSSION Upjohn’s subpoenas duces tecum were served pursuant to Fed.R.Civ.P. 45, which provides in pertinent part: (3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it ... (in) requires disclosure of privileged or other protected matter and no exception or waiver applies ... (3)(B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information ... the court may order ... production only upon specified conditions. In addition, Fed.R.Civ.P. 26(c)(7) permits the court to issue a protective order which provides “that a trade secret or other confi dential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” “As with most evidentiary and discovery privileges recognized by law, ‘there is no absolute privilege for trade secrets and similar confidential information.’ ‘The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection.’” Federal Open Market Committee v. Merrill, 443 U.S. 340, 362, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979) (citations omitted); see also Hartley Pen Co. v. U.S. District Court, Etc., 287 F.2d 324, 330 (9th Cir.1961). The qualified nature of the trade secret privilege is expressly set forth in Cal.Evid. Code § 1060: “... [T]he owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.” “In order to resist discovery of a trade secret, a party must first demonstrate by competent evidence" }, { "docid": "4936587", "title": "", "text": "the attorney-client privilege and the work product doctrine, but it is vital also to bear in mind the extent to which the motions to quash sought a wholesale departure from the normal manner in which such claims of immunity from disclosure are adjudicated. There is a well-established procedure for the invocation of alleged privileges in response to subpoenas and other demands for tangible evidence. Those in possession, custody or control of allegedly privileged documents called for by subpoenas and document requests are obliged to enumerate the documents as to which they claim privilege and assert their privilege claims in the manner prescribed by both local and federal rules. In most circumstances, a party cannot rely on “mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.” Where a party seeks disclosure from a witness who may have relevant information concerning allegedly privileged attorney-client communications, the fact that the witness may be asked questions that call for information as to privileged communications does not protect a witness from being deposed or called to testify at a trial or before a grand jury. Rather, the witness must appear and give testimony. When a question seeking disclosure of allegedly privileged material is posed, however, the holder of the alleged privilege may object and delay disclosure until a court rules on the objection. When an objection is made the party seeking disclosure nevertheless is entitled to discover the dates and places of and the identities of the participants in the communications, the identities of others who were present and to whom the communications were disclosed, and the general subject matter (but not the content) of the communications. This permits the party seeking disclosure and, if need be, the court to know which communications are at issue, something about their general nature, whether they in fact were confidential, and whether any privilege has been waived by disclosure of the contents of the communications to persons other than the attorney and client. Once such a record is developed," }, { "docid": "21865824", "title": "", "text": "Memoranda to the Government, pursuant to the SEC Agreement and USAO Agreement (collectively “Agreements”). The question before the Court, therefore, is whether the attorney-client privilege attaches to the documents where McKesson HBOC agrees, prior to the creation of the documents, to disclose them to the Government on condition that the Government acknowledge and make efforts to maintain the confidential nature of the documents unless it determines, in its discretion, that it must disclose them. The party asserting the privilege must make a prima facie showing the privilege protects the information the party intends to withhold. In re Grand Jury Invest., 974 F.2d 1068, 1071 (9th Cir.1992). The privilege applies where legal advice of any kind is sought from a professional legal adviser in his capacity as such, and the communication relates to that purpose, is made in confidence, by or for the client. See Id. In order for the privilege to apply, the communication sought to be protected must be, among other things, made in confidence. See In re Grand Jury Invest., 974 F.2d at 1071. Here, and as argued by the Company, the Agreements are replete with language which would support a finding the Company intended the documents now sought by Defendants to be confidential. Specifically, the Company stated that the documents were created “solely for the purposes of providing legal advice to the Company and the Audit Committee ...” and would contain and reflect “communications protected by the work-product doctrine and attorney-client privilege ____” SEC Agreement at 2; USAO Agreement at 2. The Agreements also indicated that the Company did not want to or intend to waive the protection from further disclosure. See Id.; see also USAO Agreement at 3. The Company further sought and obtained agreement by the Government for efforts to maintain the confidentiality of the documents produced. See Id. (stating in both that the Government “will maintain the confidentiality of [the documents] ... and agrees not to disclose [the documents] to any third party ....”). Having said that, communications between client and attorney for the purpose of relaying communication to a third party is not" }, { "docid": "11918830", "title": "", "text": "shield all information that a client divulges to an attorney, or vice versa, but rather is limited to instances where legal advice is sought or rendered.” PG &E I, 69 Fed.Cl. at 810 (citing First Federal, 55 Fed.Cl. at 266 (citing In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2d Cir. 1984))). The privilege “evaporates upon any voluntary disclosure of confidential informa-tion to a third party.” Carter v. Gibbs, 909 F.2d 1450, 1451 (Fed.Cir.1990), superceded in non-relevant part by statute, Pub.L. No. 103—424 § 9(c), 108 Stat. 4361 (1994), as stated in In re EchoStar Commc’n Corp., 448 F.3d 1294, 1300 (Fed.Cir.2006). Furthermore, “the privilege impedes the search for truth and is therefore to be strictly construed.” PG & E I, 69 Fed.Cl. at 811 (citing First Federal, 55 Fed.Cl. at 266 (citing Energy Capital Corp. v. United States, 45 Fed.Cl. 481, 484 (2000))). The attorney-client privilege applies not only to private individuals, but also to government employees. Communications by the Department of Justice to a client agency and by that agency’s own attorneys to non-attorney personnel seeking or being provided with legal advice are entitled to protection under the attorney-client privilege. See Cities Serv. Helex, Inc. v. United States, 216 Ct.Cl. 470, 1978 WL 8445 (1978) (en banc); Renda Marine, Inc. v. United States, 62 Fed.Cl. 371 (2004); Paalan v. United States, 51 Fed Cl. 738, 753 (2002). When a party invokes the attorney-client privilege by providing a privilege log, “the description of each document and its contents must be sufficiently detailed to allow the court to determine whether the elements of attorney-client privilege ... have been established.” SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 475 (E.D.Pa.2005) (SmithKline) (alteration in original) (citation omitted). Rule 26(b)(5) of the Rules of the United States Court of Federal Claims (RCFC) provides the appropriate standard: WTien a party withholds information ... by claiming that it is privileged ... the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself" }, { "docid": "20343703", "title": "", "text": "is privileged or subject to protection as ■ trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. This rule is in accordance with case law on the burden of establishing a privilege. This law was also summarized in Kelling, 157 F.R.D. at 497: The burden of demonstrating the existence of a privilege is on the party claiming the privilege. Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984); Smith v. MCI Telecommunications Corp., 124 F.R.D. 665, 687 (D.Kan.1989). The party claiming the privilege must supply the court with sufficient information to enable the court to determine that each element of the privilege is satisfied. F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir.1980). A failure of proof as to any element of the privilege causes the claim of privilege to fail. Bulk Lift Intern., Inc. v. Flexcon & Systems, Inc., 122 F.R.D. 482, 492 (W.D.La.1988). A blanket claim of the existence of the privilege is insufficient to meet the burden of proof. In re Grand Jury Subpoena, 831 F.2d 225, 228 (11th Cir.1987); F.T.C. v. Shaffner, 626 F.2d at 37. Plaintiff, beyond making a blanket claim of privilege or confidentiality, has failed to demonstrate how each element of the privilege is satisfied. Blanket claims of privilege or confidentiality are clearly insufficient to protect materials from disclosure. The very sketchy information provided by the plaintiff is woefully inadequate to meet their burden of proof. The attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor. Matter of Grand Jury Subpoena Duces Tecum (Dorokee Company), 697 F.2d 277, 278 (10th Cir.1983). Federal courts have consistently recognized that confidential communications by the attorney to a client also fall within the privilege. See United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir.1980);" }, { "docid": "20318961", "title": "", "text": "directions on how to properly claim a discovery privilege (p. 126, supra). Accordingly, we find little merit to the Department of Labor’s motion to quash the subpoena with respect to the documents alleging work product privilege, and as such it will be denied. III. CONCLUSION Based on the foregoing, the motion to quash the subpoena is denied with respect to all documents except the 44 pages of witness statements. The Department of Labor is hereby ordered to turn over all other subpoenaed documents (with possible redaction as mentioned in footnote 10 supra,) less all witness statements. . In the initial Freedom of Information request, the Department of Labor relied on the following exemptions to the Act to prevent disclosure of the documents now being subpoenaed: (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel. 5 U.S.C. § 552(b). . The validity of similar regulations restricting disclosure of government information has been upheld. See e.g. United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Saunders v. Great Western Sugar Company, 396 F.2d 794 (10th" }, { "docid": "18183986", "title": "", "text": "only determine the effect of disclosure to the Consortium. As noted, the district court held that appellants waived attorney-client privilege by sharing the contested- documents with the Consortium because the Consortium’s interest was commercial rather than legal. The purpose of the attorney-client privilege is to enable attorneys to give informed legal advice to clients, which would be undermined if an attorney had to caution a client about revealing relevant circumstances lest the attorney later be compelled to disclose those circumstances. The privilege, and by extension the tax practitioner privilege, see Note 3, supra, protects communications between a client and its attorney that are intended to be, and in fact were, kept confidential. A party that shares otherwise privileged communications with an outsider is deemed to waive the privilege by disabling itself from claiming that the communications were intended to be confidential. Moreover, the purpose of the communications must be solely for the obtaining or providing of legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir.2011). See In re John Doe Corp., 675 F.2d 482, 488 (2d Cir.1982). Communications that are made for purposes of evaluating the commercial wisdom of various options as well as in getting or giving legal advice are not protected. See In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir.1984). While the privilege is generally waived by voluntary disclosure of the communication to another party, the privilege is not waived by disclosure of communications to a party that is engaged in a “common legal enterprise” with the holder of the privilege. Under United States v. Schwimmer, 892 F.2d 237 (2d Cir.1989), such disclosures remain privileged “where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel ... in the course of an ongoing common enterprise ... [and] multiple clients share a common interest about a legal matter.” Id. at 243 (internal citations and quotation marks omitted). “The need to protect the free flow of information from client to attorney logically exists whenever multiple clients share a common" }, { "docid": "23579736", "title": "", "text": "intervenors’ view, we would create a judicially enforced code of silence, preventing attorneys from disclosing information obtained from other attorneys and other attorneys’ clients. Common sense suggests that there can be no joint defense agreement when there is no joint defense to pursue. We so hold. B. Fed.R.Civ.P. 45(d)(2). As an alternate ground for our decision, we note that the motion to quash was properly denied because the intervenors failed to present sufficient information with respect to the items to which their claim of privilege attaches. The Civil Rules specifically provide that: When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim. Fed.R.Civ.P. 45(d)(2). The operative language is mandatory and, although the rule does not spell out the sufficiency requirement in detail, courts consistently have held that the rule requires a party resisting disclosure to produce a document index or privilege log. See, e.g., Bregman v. Dist. of Columbia, 182 F.R.D. 352, 363 (D.D.C.1998); First American Corp. v. Al-Nahyan, 2 F.Supp.2d 58, 63 n. 5 (D.D.C. 1998); see also Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C.1999) (describing privilege logs as “the universally accepted means” of asserting privilege claims in the federal courts); cf. Vaughn v. Rosen, 484 F.2d 820 (D.C.Ct. App.1973) (articulating the justifications for requiring privilege logs in the context of the FOIA). A party that fails to submit a privilege log is deemed to waive the underlying privilege claim. See Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 923 (Fed.Cir.1996) (holding that failing “to provide a complete privilege log demonstrating sufficient grounds for taking the privilege” waives the privilege). Although most of the reported cases arise in the context of a claim of attorney-client privilege, the “specify or waive” rule applies equally in the context of claims of work product privilege. See," } ]

[ { "docid": "18711851", "title": "", "text": "dismissal by the bankruptcy judge of a complaint objecting to the discharge of the bankrupt is final. The proceeding that such a complaint kicks off has traditionally been treated as a separate adversary proceeding within the framework of the overall bankruptcy case, see 3 Collier on Bankruptcy If 523.11 (15th ed. 1984); and as Judge Breyer has persuasively explained, Congress in overhauling the system of bankruptcy appeals in the 1978 act apparently meant to continue the former practice whereby orders disposing of such proceedings were appealable as final orders. In re Saco Local Development Corp., 711 F.2d 441, 443 (1st Cir.1983). We can find nothing in the 1984 amendments that changes the scheme adopted in 1978 in any particular relevant to this case. Compare 28 U.S.C. §§ 1293(b), 1334(a), (b), add ed by the 1978 act, with 28 U.S.C. § 158, added by the 1984 act. The relevant provisions appear to be identical except for immaterial wording changes. Of course an order rejecting a complaint that a debt not be discharged is not really final, because the complainant may still get a part of his debt repaid out of the assets of the estate. But then an order accepting a claim against the estate is not really final either, because the actual amount received on the claim will not be determined till the amounts and priorities of other claims, and the assets of the estate, are determined; and yet such an order is appealable immediately as a final order. See 711 F.2d at 448. Although the order of the bankruptcy judge rejecting the bank’s complaint thus was final within the meaning of the appeal statute, we have jurisdiction of the district court’s order reversing the bankruptcy judge only if that order was final too. See 28 U.S.C. § 1293(b), added by the 1978 act; and 28 U.S.C. § 158(d), added in 1984. (These provisions are worded virtually the same, and appear to have the same meaning, In re Pacor, Inc., 743 F.2d 984, 987 n. 4 (3d Cir.1984), so that although the 1984 amendments do not expressly repeal section 1293(b)," } ]

[ { "docid": "18720636", "title": "", "text": "1293(b) (omitted by Pub.L. 98-353, title I, § 113, 98 Stat. 343 (1984)). The 1984 Act, which became effective on July 10, 1984, appears to have deleted § 1293 and substituted a new provision governing appellate review which is codified at 28 U.S.C. § 158 (1984). Accordingly, it is necessary to ascertain whether the procedures set forth in the 1978 Act or the 1984 Act govern this appeal. In this regard, section 122(a) of the 1984 Act makes clear that portions of the 1984 Act regarding appellate jurisdiction became effective on July 10, 1984, the day of enactment. Thus all cases and appeals filed after the effective date are to be governed by the procedural provisions of the 1984 Act. It is essential to determine, however, whether title I of the 1984 Act also applies to matters pending before the effective date of the Act but not decided until after that date—the situation presented by this appeal. In this respect, section 122(b) of the 1984 Act specifically provides that certain designated sections of title I of the new Act “shall not apply with respect to eases under title 11 ... that are pending” on July 10, 1984. Since none of these statutory exceptions are applicable here, we conclude that the 1984 Act controls the present appeal. This result follows the general rule that “a court is to apply the law in effect at the time it renders its decisions, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); see In re Osborne, 42 B.R. 988, 992-93 (W.D.Wis.1984) (concluding that title I of 1984 Act applies to pending cases); see also In re Riggsby, 745 F.2d 1153 (7th Cir.1984) (apparently applying 1984 Act to a pending appeal). Under the 1984 Act, the new provision governing appellate procedure is 28 U.S.C. § 158 which provides that (a) The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders," }, { "docid": "21726780", "title": "", "text": "Title I, which enacted 28 U.S.C.A. § 158, became effective July 10, 1984. Moreover, section 113 provided that the direct appeal provision, section 1293(b), was ineffective as of June 27, 1984. This Court has held that “[n]ew laws will be applied [to cases pending on the date of their enactment] unless manifest injustice would result, or there is a statutory directive or legislative history to the contrary.” Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919,100 S.Ct. 1284, 63 L.Ed.2d 605 (1980) (footnote and citations omitted); see United States v. Marengo County Commission, 731 F.2d 1546, 1553 (11th Cir.), cert. denied, — U.S.-, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). Although a bill suggested in part to repeal section 121(a) was forwarded to the Senate by William E. Foley, Director, Administrative Office of the United States Courts, the Congress has apparently left these conflicts for the courts to resolve. We conclude that to the extent section 121(a) provides that section 1293(b) was effective on July 10, 1984, the passage or language of section 121(a) was an oversight. Section 113 and 28 U.S.C.A. § 158, read in the context of both the 1978 and the 1984 Bankruptcy Acts, abolish our jurisdiction to hear direct appeals from the bankruptcy court filed as of July 10, 1984. Accordingly, we direct the Clerk of the Court to transmit the briefs and record in this case to the United States District Court for the Southern District of Florida pursuant to our transfer authority under 28 U.S.C.A. § 1631. This appeal is TRANSFERRED. . Section 113 states in its entirety: Section 402(b) of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2682), is amended by striking out “shall take effect on June 28, 1984\" and inserting in lieu thereof \"shall not be effective”. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 113, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 343. . 28 U.S.C.A. § 1293(b) states in its entirety: (b) Notwithstanding section 1482 of this title, a court of appeals shall have jurisdiction of" }, { "docid": "21726777", "title": "", "text": "appeal from the bankruptcy court pursuant to 28 U.S.C.A. § 158 and section 113 of the 1984 Act and transferred the appeal to district court under 28 U.S.C.A. § 1631. We agree with the position taken by the Fifth Circuit. Absent an affirmative showing of intent to repeal, statutes are generally deemed to be repealed only where there exists a positive repugnancy which “cannot be reconciled.” Interstate Commerce Commission v. Southern Railway Co., 543 F.2d 534, 539 (5th Cir.1976) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353-54, 42 L.Ed.2d 320 (1974)). Section 1293(b) is impossible to reconcile with the new 28 U.S.C.A. § 158. Both cannot be effective. The former explicitly authorizes direct appeals to this Court. The latter does not. While there is no legislative history to explain why section 1293 was retained on the statute books upon adoption of the new appeal provision, it is apparent that the new Act’s appellate scheme embodied in 28 U.S.C.A. § 158 was intended by Congress to supplant section 1293(b) direct appeals. First, 28 U.S.C.A. § 158 collects together all former appellate provisions into a comprehensive and autonomous appellate scheme. Second, it contains no provision for direct appeals in describing court of appeals jurisdiction. Thus, it is reasonable to give effect to the new appeal provision and to assume that Congress intended to supercede the former procedure. See In re Exclusive Industries Corp., 751 F.2d at 808; cf. In re Riggsby, 745 F.2d 1153, 1155 (7th Cir.1984) (1984 Amendments repeal section 1293(b) by implication because the provisions appear to have the same meaning); but cf. Pacor, Inc. v. Higgins, 743 F.2d 984, 987 n. 4 (3d Cir.1984) (“We do not believe that the particular changes, terminology, and renumbering of [jurisdictional] sections make substantive changes in the statutes as we interpret them in this opinion.”). When questioned about the inconsistency in the legislation, Senator Dole, a key senator in the passage of BAFJA, stated: We goofed. [Section 113] states that Title II of the 1978 Reform Act will not take effect while [section 121(a) ] makes it" }, { "docid": "18598326", "title": "", "text": "facto legislative history by (among other things) granting interviews to discuss the problems. Senator Dole and Senator DeConcini, key Congressional forces in the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984, were interviewed by the American Bankruptcy Institute; Senator Dole is quoted as follows in Vol. III, No. 3, ABI Newsletter, Winter 1984/1985: Q: \"Section 113 and 121(a). are exact opposites. What happened?” A: (Senator Dole) \"We goofed. The first section you mentioned states that Title II of the 1978 Reform Act will not take effect while the latter section makes it effective on the date of enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984. Taken in the context of what we were doing, it is obvious that Section 113 is the correct provision and that the language found in 121(a) is totally in opposition to our intention and should be ignored.” .If it were not for this fortuitous circumstance, the Court would be hard pressed absolutely to ignore one section of an Act of Congress because of the internal inconsistency and because of a post-enactment interview granted by one of the Senators directly responsible for its passage. The Court’s duty, however, is to apply the law as best it can, assisted by reason and experience, to the facts before it. Section 121(a) appears on its face to be a mistake because it reenacts the law that it attempts to replace; happily in this circumstance, that same result can be supported logically, albeit with rather contorted application of statutory effective dates. . Bankruptcy Amendments and Federal Judgeship Act of 1984, § 122(b). Therefore, 28 U.S.C. § 1411, the replacement for § 1480, does not apply to the case at bar under any circumstances. If it did, we would need to determine whether defamation is a \"personal injury.\" . Personal injury and wrongful death claims were mandated by Congress to be tried in the district court. 28 U.S.C. § 157(b)(5). Logically, since the right to jury trials is provided only for personal injury and wrongful death claims, and since those claims must be tried by" }, { "docid": "1169590", "title": "", "text": "over appeals of bankruptcy court interlocutory orders to the appellate bankruptcy panels. The court reasoned that if an appellate panel’s resolution of an appeal from an interlocutory order were to be considered a “final decision,” then § 1293(a) would condition the appealability of interlocutory orders upon the nature of the intermediate appellate forum, since jurisdiction over bankruptcy appeals from the district court was strictly limited to final orders. In re Tidewater Group, Inc., 734 F.2d 794, 796 (11th Cir.1984). This would place parties at a significant disadvantage if they were litigating in a circuit where appellate bankruptcy panels had not been set up. Absent a clear indication from Congress that it intended the system of bankruptcy appeals to contain such incongruities, the Ninth Circuit held that “decisions” and “judgments” should be considered to be equivalent in § 1293. Accord Collier on Bankruptcy 113.03[7][d][v] at 3-309 through 3-310 (15th ed. 1984); cf. In re UNR Industries, Inc., 725 F.2d 1111, 1115 (7th Cir.1984) (“decision” in 28 U.S.C. § 1291 means judgment, order, or decree). Similarly, the addition of the word “decision” in 28 U.S.C. § 158(d) should not be taken to expand the bankruptcy jurisdiction of the courts of appeals. Those few courts that have compared § 1293(b) with § 158(d) have found only “immaterial wording changes.” In re Riggsby, 745 F.2d 1153, 1155 (7th Cir.1984). Accord Pacor, Inc. v. Higgins, 743 F.2d 984, 987 n. 4 (3d Cir.1984). A review of the legislative history of § 158(d) reveals that the sponsor of this language viewed it only as continuing “traditional appellate review.” 130 Cong. Rec. E 1108 (daily ed. March 20, 1984) (statement of Rep. Kastenmeier). Although a contrary interpretation of § 158(d) would not produce the kind of systemic incongruities discussed above, the havoc which it would wreak upon both the courts of appeals and parties in bankruptcy are sufficient reasons to presume that Congress intended to maintain the status quo as to court of appeals jurisdiction over interlocutory orders of the bankruptcy courts. Under this analysis of 28 U.S.C. § 158(d), the scope of our bankruptcy appeals jurisdiction" }, { "docid": "18768841", "title": "", "text": "Swig appeal from so much of the district court’s order that affirms the bankruptcy court’s nunc pro tunc approval; Greycas appeals from both the nunc pro tunc approval and the remand; and Simon cross-appeals from that portion of the order vacating the monetary award and remanding the case to the bankruptcy court. . Section 158(d) of title 28 of the United States Code provides that: The courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section. 28 U.S.C. § 158(d) (Supp. Ill 1985). Subsection (a) of section 158 provides, in turn, that: The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving. 28 U.S.C. § 158(a) (Supp. Ill 1985). Subsection (b) of section 158, governing appeals from bankruptcy appellate panels, is not relevant here. .Prior to 1984, the jurisdiction of the courts of appeals in bankruptcy cases was governed by 28 U.S.C. § 1293(b), (omitted by Pub.L. 98-353, tit. I, § 113, 98 Stat. 333, 343 (1984)), which provided that courts of appeals had jurisdiction \"from a final judgment, order, or decree of a bankruptcy court.” This provision was superseded by section 158(d) when Congress enacted the Bankruptcy Amendments & Federal Judgeship Act of 1984, Pub.L. No. 98-353, tit. I, § 104(a), 98 Stat. 333, 341 (1984), in response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Because both statutes contain the finality requirement, this court has stated that Congress did not intend any substantive change when it enacted section 158(d), and, indeed, the legislative history reveals none. In re Pacor, Inc., 743 F.2d 984," }, { "docid": "18764853", "title": "", "text": "F.2d 426, 428 (9th Cir.1984); In re Bestmann, 720 F.2d 484, 486 (8th Cir.1983); see Pettinelli v. Danzig, 644 F.2d 1160, 1161-62 (5th Cir.1981). There are few appellate cases that have examined the final decision requirement of 28 U.S.C. § 158(d), but those cases suggest that the 1984 Amendments which enacted § 158(d) made no change in the standard for determining whether an order in a title 11 case is final and therefore appealable. One court of appeals found: nothing in the 1984 amendments that changes the scheme adopted in 1978.... Compare 28 U.S.C. §§ 1293(b), 1334(a), (b), added by the 1978 Act, with 28 U.S.C. § 158, added by the 1984 act. The relevant provisions appear to be identical except for immaterial wording changes. In re Riggsby, 745 F.2d 1153, 1154-55 (7th Cir.1984). Other courts have reached the same conclusion. See In re Pacor, Inc., 748 F.2d 984, 987 n. 4 (3d Cir.1984) (“[w]e do not believe that the particular changes, terminology, and renumbering of sections make substantive changes in the statutes as we interpret them in this opinion.”); see In re Dahlquist, 751 F.2d 295, n. 3 (8th Cir.1985) (“[t]he jurisdictional question here at issue would be the same under § 158 as it is under § 1293; whether the order ... is a final order for purposes of appellate review”). This conclusion is strengthened by the absence of any indication in the legislative history of the 1984 Amendments that Congress intended title I of that Act to do anything more than correct the constitutional deficiency of the 1978 Act identified by the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). See generally Legislative History of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 1984 U.S.Code Cong. & Ad.News 576, 579-606; H.Rep. No. 882, 98th Cong., 2d Sess. (1984) (conference report); see also In re Pacor, Inc., 743 F.2d 984, 987, n. 4 (3d Cir.i.984) (“the 1984 Act ‘re-enact[s], with minor technical amendments [the] provisions of the 1978 Act relating to venue and" }, { "docid": "18764854", "title": "", "text": "interpret them in this opinion.”); see In re Dahlquist, 751 F.2d 295, n. 3 (8th Cir.1985) (“[t]he jurisdictional question here at issue would be the same under § 158 as it is under § 1293; whether the order ... is a final order for purposes of appellate review”). This conclusion is strengthened by the absence of any indication in the legislative history of the 1984 Amendments that Congress intended title I of that Act to do anything more than correct the constitutional deficiency of the 1978 Act identified by the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). See generally Legislative History of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 1984 U.S.Code Cong. & Ad.News 576, 579-606; H.Rep. No. 882, 98th Cong., 2d Sess. (1984) (conference report); see also In re Pacor, Inc., 743 F.2d 984, 987, n. 4 (3d Cir.i.984) (“the 1984 Act ‘re-enact[s], with minor technical amendments [the] provisions of the 1978 Act relating to venue and removal of bankruptcy cases and proceedings’ ” (citations omitted)). We conclude that the jurisdiction of the courts of appeals over appeals in cases and proceedings arising under title 11 remains the same under § 158(d) as it was under its predecessor, 28 U.S.C. § 1293(b) (effectively repealed July 10, 1984). Courts that have examined § 1293 recognize that in matters arising under title 11, appeal may be taken from other than case dispositive decisions. See In re Ellsworth, 722 F.2d 1448 (9th Cir.1984); In re Mason, 709 F.2d 1313 (9th Cir.1983). They have found that decisions that conclusively determine a separable dispute, such as the allowance or disallowance of a claim, are final decisions within the meaning of the statute. See In re Saco Local Development Corp., 711 F.2d 441, 444-45 (1st Cir.1983); see, e.g., In re Bestmann, 720 F.2d 484, 486 (8th Cir.1983). The test for determining finality of these discrete decisions that are not case dispositive is the same as that applied to case dispositive matters in bankruptcy under § 1293 and to" }, { "docid": "18598325", "title": "", "text": "right to jury, then parties in core matters would have no constitutional jury rights. . Originally it was to become effective April 1, 1984; amendments during early 1984 attempted to deal with the Marathon case. These were substantially month-to-month extensions that resulted in the June 28 date. . Section 122(c) of the Bankruptcy Amendments and Federal Judgeship Act of 1984 provides that § 113 of that Act became effective retroactively on June 27, 1984. . Section 121(a) became effective on the date of enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984, July 10, 1984. . This interpretation is supported by footnote 1 of a per curiam opinion of the Fifth Circuit, First National Bank of Lafayette v. Amco Underwriters of Audubon Insurance Company, 751 F.2d 806 (5th Cir., 1985). . Northern Pipeline Construction Co. v. Marathon, id. . Faced with an obviously technically flawed statute, buffeted by the absence of legislative history and torn by jurisdictional doubts on all sides, the Senators who shepherded the law through Congress have provided ex post facto legislative history by (among other things) granting interviews to discuss the problems. Senator Dole and Senator DeConcini, key Congressional forces in the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984, were interviewed by the American Bankruptcy Institute; Senator Dole is quoted as follows in Vol. III, No. 3, ABI Newsletter, Winter 1984/1985: Q: \"Section 113 and 121(a). are exact opposites. What happened?” A: (Senator Dole) \"We goofed. The first section you mentioned states that Title II of the 1978 Reform Act will not take effect while the latter section makes it effective on the date of enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984. Taken in the context of what we were doing, it is obvious that Section 113 is the correct provision and that the language found in 121(a) is totally in opposition to our intention and should be ignored.” .If it were not for this fortuitous circumstance, the Court would be hard pressed absolutely to ignore one section of an Act of Congress because of the" }, { "docid": "18764852", "title": "", "text": "the decisions of district courts in cases or proceedings arising under title 11 extends only to those district court decisions which are “final,” our first responsibility is to determine whether the order appealed from is “final.” See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 380, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981) (“if an appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over”); see also Petraco-Valley Oil & Refining Co. v. U.S. Department of Energy, 633 F.2d 184 (Em.App.1980) (dismissing appeal because district court order was not final). Although the question of the finality of the district court’s order was not raised by either of the parties, it is well settled that appellate courts are nevertheless obliged to consider the issue sua sponte. See, e.g., Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); In re Pacor, Inc., 743 F.2d 984 (3d Cir.1984); In re American Mariner Industries, Inc., 743 F.2d 426, 428 (9th Cir.1984); In re Bestmann, 720 F.2d 484, 486 (8th Cir.1983); see Pettinelli v. Danzig, 644 F.2d 1160, 1161-62 (5th Cir.1981). There are few appellate cases that have examined the final decision requirement of 28 U.S.C. § 158(d), but those cases suggest that the 1984 Amendments which enacted § 158(d) made no change in the standard for determining whether an order in a title 11 case is final and therefore appealable. One court of appeals found: nothing in the 1984 amendments that changes the scheme adopted in 1978.... Compare 28 U.S.C. §§ 1293(b), 1334(a), (b), added by the 1978 Act, with 28 U.S.C. § 158, added by the 1984 act. The relevant provisions appear to be identical except for immaterial wording changes. In re Riggsby, 745 F.2d 1153, 1154-55 (7th Cir.1984). Other courts have reached the same conclusion. See In re Pacor, Inc., 748 F.2d 984, 987 n. 4 (3d Cir.1984) (“[w]e do not believe that the particular changes, terminology, and renumbering of sections make substantive changes in the statutes as we" }, { "docid": "18768842", "title": "", "text": "the bankruptcy judge is serving. 28 U.S.C. § 158(a) (Supp. Ill 1985). Subsection (b) of section 158, governing appeals from bankruptcy appellate panels, is not relevant here. .Prior to 1984, the jurisdiction of the courts of appeals in bankruptcy cases was governed by 28 U.S.C. § 1293(b), (omitted by Pub.L. 98-353, tit. I, § 113, 98 Stat. 333, 343 (1984)), which provided that courts of appeals had jurisdiction \"from a final judgment, order, or decree of a bankruptcy court.” This provision was superseded by section 158(d) when Congress enacted the Bankruptcy Amendments & Federal Judgeship Act of 1984, Pub.L. No. 98-353, tit. I, § 104(a), 98 Stat. 333, 341 (1984), in response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Because both statutes contain the finality requirement, this court has stated that Congress did not intend any substantive change when it enacted section 158(d), and, indeed, the legislative history reveals none. In re Pacor, Inc., 743 F.2d 984, 987 n. 4 (3d Cir.1984). We may therefore rely on cases decided under section 1293(b) to assess our jurisdiction under section 158(d). See In re Brown, 803 F.2d 120, 122 n. 3 (3d Cir.1986). . One authority has concluded that the issue of whether a court of appeals has jurisdiction over an order of the district court remanding to the bankruptcy court is \"hopelessly unresolved.” 1 L. King, Collier on Bankruptcy, para. 3.03 at 3-176 (15th ed. 1987) (citing cases). This case is unlike those where courts of appeals have dismissed appeals when the district court's remand to the bankruptcy court involved the development of \"further factual findings related to a central issue raised on appeal.” In re Stanton, 766 F.2d 1283, 1287 (9th Cir.1985) (citing In re Martinez, 721 F.2d 262, 265 (9th Cir.1983)); see also In re Vekco, 792 F.2d 744 (8th Cir.1986). Compare In re Bowman, 821 F.2d 245, 248 (5th Cir.1987) (finding no final order when remand involves \"significant further proceedings\") with In re Lift & Equipment Service, Inc., 816 F.2d" }, { "docid": "12958524", "title": "", "text": "158(d) indicates that Congress intended to limit court of appeals jurisdiction over decisions of bankruptcy courts to final decisions. Section 158(d)’s predecessor was 28 U.S.C. § 1293(b), which differed in language but not in substance. See Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 236(a), 92 Stat. 2549, 2667. Although enacted in 1978, Section 1293(b)’s effective date was in 1984. See id. at § 402(b), 92 Stat. 2549, 2682. Before it became effective, Section 158(d) was passed, apparently as a substitute for Section 1293(b). See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 104, 98 Stat. 333, 341. Most of the pertinent legislative history, therefore, is in the Bankruptcy Act of 1978. The course of events in Congress leading to passage of Section 1293(b) appears to have been as follows. The bill passed by the House, H.R. 8200, would have conferred Article III status upon bankruptcy judges and would have treated bankruptcy courts as on a par with district courts. It thus would have eliminated the longstanding practice of appellate review of bankruptcy court decisions by district courts and would have amended Section 1291 to provide for direct appellate review of bankruptcy decisions by courts of appeals. It similarly would have amended Section 1292 to provide for direct appeals from interlocutory orders of bankruptcy courts in the case of injunctions or certified questions. H.R. 8200, 95th Cong., 2d Sess., 124 Cong. Rec. 1786 (Feb. 1, 1978) (setting forth sections 237-39 of bill); id. at 1804 (passage of bill). That the implications of this were fully understood is made clear by the discussion in the relevant House Report concerning these provisions and in particular their impact on the caseload of the courts of appeals. H.R.Rep. No. 595, 95th Cong., 2d Sess. 40-43, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6001-04. The Senate bill, S. 2266, as reported out by the Judiciary Committee, did not confer Article III status on bankruptcy judges and would have continued the practice of appeals to the district courts. It contained no explicit provision for subsequent review by the courts" }, { "docid": "18720660", "title": "", "text": "§ 1293, the 1984 Act contains two apparently contradictory provisions. Section 113 of the 1984 Act, Pub.L. 98-353, title I, 98 Stat. 343 provides that § 1293 \"shall not be effective.\" Section 121(a) of the 1984 Act, Pub.L. 98-353, title I, § 121(a), 98 Stat. 345, however, appears mistakenly to have included § 1293 among provisions of the 1978 Act to become effective on July 10, 1984. . Section 122(a) of the 1984 Act states that \"Except as otherwise provided in this section, this title [I] and the amendments made by this title shall take effect on the date of the enactment of this Act.” Pub.L. 98-393, title I, § 122(a), 98 Stat. 346 (codified in note preceding 28 U.S.C. § 151). Title I of the 1984 Act contains the procedural provisions governing bankruptcy cases, including the promulgation of 28 U.S.C. § 158 and the elimination of § 1293. . If the 1984 Act did not apply, our jurisdiction might still be based on § 1291 and not § 1293(b) of the 1978 Act because after Marathon the district court was asserting original jurisdiction. See Pacor, Inc. v. Higgins, 743 F.2d 984, 987 & n. 5 (3d Cir.1984); Coastal Steel v. Tilghman Wheelahrator, Ltd., 709 F.2d 190, 199— 200 (3d Cir.), cert. denied, - U.S. -, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983). These cases specifically indicate that after Marathon in matters \"related to” bankruptcy § 1291, not § 1293(b) applies. In this proceeding, which \"arises under” rather than “relates to\" title 11, it is possible that § 1293(b) might still be operative. However, because we are applying the 1984 Act we need not resolve this thorny jurisdictional question. Moreover, applying § 1293(b) rather than § 1291 does not affect our jurisdiction. See Pacor, 743 F.2d at 987 n. 5. . The equation of the denial to appoint a guardian ad litem, the matter here, with the denial of a right to intervene, the issue in Marin, is highlighted by the bankruptcy judge’s reasoning for denying the motion. The bankruptcy judge refused to appoint a legal representative for future claimants" }, { "docid": "8396145", "title": "", "text": "have had. We therefore conclude that the action brought by Higgins against Pacor is not “related to” bankruptcy, and that therefore there was no jurisdiction to remove the matter to federal court. There being no federal jurisdiction, the district court had no alternative but to remand the Higgins-Pacor action to the state court. IV. The judgment of the district court, remanding the Higgins-Pacor action to state court, will be affirmed. . Cf. Firestone Tire & Rubber Co. v. Risjord 449 U.S. 368, 379-80, 101 S.Ct. 669, 676-77, 66 L.Ed.2d 571 (1981) (if court of appeals has no jurisdiction, it cannot reach merits but must dismiss the appeal). . The Interim Bankruptcy Rules were presented to the district courts in 1979 by the Supreme Court’s Advisory Committee on Bankruptcy Rules, as suggested additions to each court’s local rules, and were in fact adopted by most district courts. They were intended to serve until the Committee could draft the comprehensive Rules of Bankruptcy Procedure for approval by the Supreme Court and by Congress. On August 1, 1983, the Rules of Bankruptcy Procedure became effective for all districts pursuant to 28 U.S.C. § 2075, and the Interim Rules became obsolete. . Whether this was a true \"appeal,” or a \"review” of the bankruptcy judge’s recommendation, is discussed in Hanna v. Philadelphia Asbestos Co., 743 F.2d 996 (3d Cir.1984). . We recognize that, effective July 10, 1984, Congress enacted into law the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353 (1984). While the instant controversy arose prior to that date and thus is not governed by the provisions of the new Act, we call attention to it because certain of its provisions recast, in slightly different form, those statutes which we discuss infra. Thus, as amended, 28 U.S.C. § 1471 (1982) is contained in the new Act as § 1334; § 1478 has become § 1452; and § 1293 is contained in § 158. We do not believe that the particular changes, terminology, and renumbering of sections make substantive changes in the statutes as we interpret them in this opinion. However," }, { "docid": "8396146", "title": "", "text": "the Rules of Bankruptcy Procedure became effective for all districts pursuant to 28 U.S.C. § 2075, and the Interim Rules became obsolete. . Whether this was a true \"appeal,” or a \"review” of the bankruptcy judge’s recommendation, is discussed in Hanna v. Philadelphia Asbestos Co., 743 F.2d 996 (3d Cir.1984). . We recognize that, effective July 10, 1984, Congress enacted into law the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353 (1984). While the instant controversy arose prior to that date and thus is not governed by the provisions of the new Act, we call attention to it because certain of its provisions recast, in slightly different form, those statutes which we discuss infra. Thus, as amended, 28 U.S.C. § 1471 (1982) is contained in the new Act as § 1334; § 1478 has become § 1452; and § 1293 is contained in § 158. We do not believe that the particular changes, terminology, and renumbering of sections make substantive changes in the statutes as we interpret them in this opinion. However, we do not decide this question, as the new Act is not before us. It appears that the new Act (without consideration of the consequences and reasoning which we set forth in text), in order to accommodate Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), has done no more than to make reference to the \"district court\" instead of the \"bankruptcy court\" in relevant sections. It has done so, however, without an intent to disturb the essential differences that existed prior to July 10, 1984, between district court provisions, such as 28 U.S.C. §§ 1441-1447, and bankruptcy provisions such as 28 U.S.C. § 1478 (1982) (renumbered as modified at 28 U.S.C. § 1452). Our belief in this respect is fortified by the legislative history, which reveals, the 1984 Act “re-enact[s], with minor technical amendments, [the] provisions of the 1978 Act relating to venue and removal of bankruptcy cases and proceedings.\" 130 Cong.Rec. E 1001 (Mar. 14, 1984); 130 Cong.Rec. S 6084 (May 21, 1984). ." }, { "docid": "21726776", "title": "", "text": "filed in response to that request, carefully arguing the conflict in the present statutes, we hold that under the new Act, direct appeals from the bankruptcy court no longer may be taken to this Court. Although we are without jurisdiction to entertain this appeal, we exercise our authority to TRANSFER this appeal to the United States District Court for the Southern District of Florida. The issue arises because two statutes are contradictory. Three sections of the new Act are relevant to this inquiry: (1) section 113, which declares 28 U.S.C.A. § 1293(b) ineffective, (2) 28 U.S.C.A. § 158, which establishes a new comprehensive system for appealing bankruptcy cases, and ^section 121(a), which declares section 1293(b) effective as of July 10, 1984, the date the BAFJA was enacted. Section 121(a) directly contradicts section 113. The question is how this conflict should be resolved. The Fifth Circuit Court of Appeals recently decided this precise issue in In re Exclusive Industries Corp., 751 F.2d 806 (5th Cir.1985) where it found it was without jurisdiction to hear a direct appeal from the bankruptcy court pursuant to 28 U.S.C.A. § 158 and section 113 of the 1984 Act and transferred the appeal to district court under 28 U.S.C.A. § 1631. We agree with the position taken by the Fifth Circuit. Absent an affirmative showing of intent to repeal, statutes are generally deemed to be repealed only where there exists a positive repugnancy which “cannot be reconciled.” Interstate Commerce Commission v. Southern Railway Co., 543 F.2d 534, 539 (5th Cir.1976) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353-54, 42 L.Ed.2d 320 (1974)). Section 1293(b) is impossible to reconcile with the new 28 U.S.C.A. § 158. Both cannot be effective. The former explicitly authorizes direct appeals to this Court. The latter does not. While there is no legislative history to explain why section 1293 was retained on the statute books upon adoption of the new appeal provision, it is apparent that the new Act’s appellate scheme embodied in 28 U.S.C.A. § 158 was intended by Congress to supplant section 1293(b) direct" }, { "docid": "12958523", "title": "", "text": "(In re Luis Elec. Contracting Corp.), 917 F.2d 713, 716-17 (2d Cir.1990), we have exercised appellate jurisdiction, without addressing the issue, over an interlocutory injunction issued by a bankruptcy court and affirmed by a district court. The disarray of our decisions is matched by similar disagreements among the circuits, which are amply described in Capitol Credit Plan of Tennessee, Inc. v. Shaffer, 912 F.2d 749 (4th Cir.1990), and need not be detailed here. Although Goodman appears to be our latest holding on this matter, we address the issue de novo and have circulated this opinion to the active members of the court. See United States v. Reed, 773 F.2d 477, 478 (2d Cir.1985). We conclude that Section 1292(b) does not provide jurisdiction in the instant matter. To be sure, nothing in Section 158(d) expressly negates jurisdiction. That provision simply does not mention interlocutory appeals. The fact that it would appear to be superfluous if not our exclusive source of our jurisdiction does, however, imply that it is exclusive. More importantly, the legislative history of Section 158(d) indicates that Congress intended to limit court of appeals jurisdiction over decisions of bankruptcy courts to final decisions. Section 158(d)’s predecessor was 28 U.S.C. § 1293(b), which differed in language but not in substance. See Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 236(a), 92 Stat. 2549, 2667. Although enacted in 1978, Section 1293(b)’s effective date was in 1984. See id. at § 402(b), 92 Stat. 2549, 2682. Before it became effective, Section 158(d) was passed, apparently as a substitute for Section 1293(b). See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 104, 98 Stat. 333, 341. Most of the pertinent legislative history, therefore, is in the Bankruptcy Act of 1978. The course of events in Congress leading to passage of Section 1293(b) appears to have been as follows. The bill passed by the House, H.R. 8200, would have conferred Article III status upon bankruptcy judges and would have treated bankruptcy courts as on a par with district courts. It thus would have eliminated the longstanding practice of appellate" }, { "docid": "21726779", "title": "", "text": "effective on the date of enactment of BAFJA. Taken in the context of what we were doing, it is obvious that Section 113 is the correct provision and that the language found in [section] 121(a) is totally in opposition to our intention and should be ignored. Dole/DeConcini Interviewed, 3 Am.Bankr. Newsletter 1, 3 (1984-85). “The circumstances of enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect.” Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). The better conclusion is that 28 U.S.C.A. § 158 and section 113 rendered ineffective the old section 1293(b). Thus, this Court does not have jurisdiction of this appeal. City Nationál Bank of Miami and City National Bank Corp. filed their appeal September 14, 1984. The 1984 Act provides that, with some exceptions, Title I “shall take effect on the date of the enactment of this Act.” Pub.L. No. 98-353, Title I, § 122(a), 1984 U.S.Code Cong. & Ad.News (98 Stat.) 346. Title I, which enacted 28 U.S.C.A. § 158, became effective July 10, 1984. Moreover, section 113 provided that the direct appeal provision, section 1293(b), was ineffective as of June 27, 1984. This Court has held that “[n]ew laws will be applied [to cases pending on the date of their enactment] unless manifest injustice would result, or there is a statutory directive or legislative history to the contrary.” Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919,100 S.Ct. 1284, 63 L.Ed.2d 605 (1980) (footnote and citations omitted); see United States v. Marengo County Commission, 731 F.2d 1546, 1553 (11th Cir.), cert. denied, — U.S.-, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). Although a bill suggested in part to repeal section 121(a) was forwarded to the Senate by William E. Foley, Director, Administrative Office of the United States Courts, the Congress has apparently left these conflicts for the courts to resolve. We conclude that to the extent section 121(a) provides that section 1293(b) was effective on July 10, 1984, the passage or" }, { "docid": "21726775", "title": "", "text": "BY THE COURT: The bankruptcy court, 41 B.R. 781 (1984), dismissed the complaint of the creditors, City National Bank of Miami and City National Bank, against the debtor, General Coffee Corporation. The parties consented to the direct appeal of the dismissal order under 28 U.S.C.A. § 1293(b) of the 1978 Bankruptcy Code. Congress, however, superseded the old Act’s section 1293(b) direct appeal provision by enacting sections 104(a) (codified at 28 U.S.C.A. § 158) and 113 of the new 1984 Bankruptcy Amendments Act. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 333, 341, 343 (BAFJA or new Act). After the notice of appeal was filed in this case, this Court requested the parties to address two jurisdictional questions: (1) Whether there is any authority for a direct appeal to this Court from bankruptcy court? (2) Whether 28 U.S.C. § 1293(b) was nullified by P.L. 98-353, the Bankruptcy Amendments and Federal Judgeship Act of 1984, and replaced by 28 U.S.C. § 158? Upon consideration of the briefs filed in response to that request, carefully arguing the conflict in the present statutes, we hold that under the new Act, direct appeals from the bankruptcy court no longer may be taken to this Court. Although we are without jurisdiction to entertain this appeal, we exercise our authority to TRANSFER this appeal to the United States District Court for the Southern District of Florida. The issue arises because two statutes are contradictory. Three sections of the new Act are relevant to this inquiry: (1) section 113, which declares 28 U.S.C.A. § 1293(b) ineffective, (2) 28 U.S.C.A. § 158, which establishes a new comprehensive system for appealing bankruptcy cases, and ^section 121(a), which declares section 1293(b) effective as of July 10, 1984, the date the BAFJA was enacted. Section 121(a) directly contradicts section 113. The question is how this conflict should be resolved. The Fifth Circuit Court of Appeals recently decided this precise issue in In re Exclusive Industries Corp., 751 F.2d 806 (5th Cir.1985) where it found it was without jurisdiction to hear a direct" }, { "docid": "21726778", "title": "", "text": "appeals. First, 28 U.S.C.A. § 158 collects together all former appellate provisions into a comprehensive and autonomous appellate scheme. Second, it contains no provision for direct appeals in describing court of appeals jurisdiction. Thus, it is reasonable to give effect to the new appeal provision and to assume that Congress intended to supercede the former procedure. See In re Exclusive Industries Corp., 751 F.2d at 808; cf. In re Riggsby, 745 F.2d 1153, 1155 (7th Cir.1984) (1984 Amendments repeal section 1293(b) by implication because the provisions appear to have the same meaning); but cf. Pacor, Inc. v. Higgins, 743 F.2d 984, 987 n. 4 (3d Cir.1984) (“We do not believe that the particular changes, terminology, and renumbering of [jurisdictional] sections make substantive changes in the statutes as we interpret them in this opinion.”). When questioned about the inconsistency in the legislation, Senator Dole, a key senator in the passage of BAFJA, stated: We goofed. [Section 113] states that Title II of the 1978 Reform Act will not take effect while [section 121(a) ] makes it effective on the date of enactment of BAFJA. Taken in the context of what we were doing, it is obvious that Section 113 is the correct provision and that the language found in [section] 121(a) is totally in opposition to our intention and should be ignored. Dole/DeConcini Interviewed, 3 Am.Bankr. Newsletter 1, 3 (1984-85). “The circumstances of enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect.” Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). The better conclusion is that 28 U.S.C.A. § 158 and section 113 rendered ineffective the old section 1293(b). Thus, this Court does not have jurisdiction of this appeal. City Nationál Bank of Miami and City National Bank Corp. filed their appeal September 14, 1984. The 1984 Act provides that, with some exceptions, Title I “shall take effect on the date of the enactment of this Act.” Pub.L. No. 98-353, Title I, § 122(a), 1984 U.S.Code Cong. & Ad.News (98 Stat.) 346." } ]

[ { "docid": "22710771", "title": "", "text": "the petitioner in the county jail the day before Breaton’s trial, at which time the petitioner was told he was about to be given his last opportunity to tell the truth and that the court, in sentencing, might well take into consideration the petitioner’s refusal to talk. Without a hearing the District Judge determined that the petitioner’s allegations as to an agreement with the Assistant United States Attorney were false. The court noted that it had never received either of the two letters referred to by the petitioner, but had received a letter purportedly from him six months after sentencing, which did not mention any agreement, but simply requested that the sentences be made concurrent, rather than consecutive. The court further noted that the petitioner had not complained when no request for a reduction of sentence was made by the United States Attorney within sixty days after sentencing, and that instead, the petitioner had waited almost two and a half years to file the present motion. There can be no doubt that, if the allegations contained in the petitioner’s motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101; Shelton v. United States, 356 U. S. 26, reversing, 246 F. 2d 571. “A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” Kercheval v. United States, 274 U. S. 220, 223. The District Court recognized that the “charges of" } ]

[ { "docid": "10639933", "title": "", "text": "cannot be predicated on these various grounds, the petitioner’s own testimony shows conclusively, as I have already noted, that none of them entered into his determination to plead guilty and under no circumstances, therefore, could afford a basis for relief in this proceeding. Of course, if a guilty plea is induced by a tainted confession or by any other deprivation of the defendant’s constitutional rights it cannot be regarded as a voluntary plea. White v. Pepersack (C.C.A.Md.1965) 352 F.2d 470, 472; Kelly v. Warden (D.C.Md. 1964) 230 F.Supp. 551, 556. But, petitioner’s complaint in this case about a confession, first raised in his petition in this Court, comes belatedly; and the long delay of the petitioner in raising it, despite repeated opportunities to raise it in his earlier applications, generates doubt of its genuineness. Prior to the filing of this petition, nothing in the record indicates that any such confession had ever existed, or had been produced or used in any way. In describing the conferences he had with his retained attorney prior to his plea, he makes no reference to any possible confession. More importantly — and this is decisive — the petitioner does not allege or claim, either in his petition or in his testimony, that his guilty plea was induced in the slightest by any possible confession. Absent any evidence of such coercion, the issue of the validity of a confession is foreclosed by the guilty plea. In this state of the record and without even a claim by the petitioner that his guilty plea was induced in any degree by a confession, relief on this ground must fail. Machibroda v. United States (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473; Lattin v. Cox (C.C.A.N.Mex.1966) 355 F.2d 397, 399. Similarly, the attack upon the indictment is without any basis. Such indictment clearly charges the crime on which the petitioner was sentenced. Thus, it charges that the petitioner “did make an assault on her the said * * * with intent her the said * * * violently and against her will, then and there" }, { "docid": "10639932", "title": "", "text": "make an identification, he had to have known what the charge under investigation was. Whether he was kept in ignorance of the charge on which he was held for a week after his arrest or not is, however, of no real moment. Petitioner makes no contention that it was related in any way to his plea. Townsend v. Burke (1947) 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207, 208; United States ex rel. Staples v. Pate, supra (332 F.2d 531). So far as petitioner’s claim of denial of bail, it is doubtful that the petitioner was bailable under the charges made against him and with the proof available (Section 20, Article 1, Constitution of South Carolina (1895); Sellers v. State of Georgia (C.C.A.Ga. 1967) 374 F.2d 84, 85; Zide v. Florida (C.C.A.Fla.1969) 410 F.2d 394, 395); but, whether bailable or not, the petitioner never made any attempt to secure release on bail. Apart from the fact that collateral attack on his guilty plea cannot be predicated on these various grounds, the petitioner’s own testimony shows conclusively, as I have already noted, that none of them entered into his determination to plead guilty and under no circumstances, therefore, could afford a basis for relief in this proceeding. Of course, if a guilty plea is induced by a tainted confession or by any other deprivation of the defendant’s constitutional rights it cannot be regarded as a voluntary plea. White v. Pepersack (C.C.A.Md.1965) 352 F.2d 470, 472; Kelly v. Warden (D.C.Md. 1964) 230 F.Supp. 551, 556. But, petitioner’s complaint in this case about a confession, first raised in his petition in this Court, comes belatedly; and the long delay of the petitioner in raising it, despite repeated opportunities to raise it in his earlier applications, generates doubt of its genuineness. Prior to the filing of this petition, nothing in the record indicates that any such confession had ever existed, or had been produced or used in any way. In describing the conferences he had with his retained attorney prior to his" }, { "docid": "10639935", "title": "", "text": "feloniously to ravish and carnally know, * * * the said * * This is for all practical purposes the exact language of the statute under which the petitioner was sentenced. It is true the indictment includes counts charging rape and assault and battery. This is plainly permissible and customary under South Carolina practice (State v. Collins (1956) 228 S.C. 537, 548-549, 91 S.E.2d 259) and follows the generally sanctioned practice elsewhere. Howard v. United States (C.C.A.Cal.1967) 372 F.2d 294, 301, cert. denied 388 U.S. 915, 87 S.Ct. 2129, 18 L.Ed.2d 1356. Moreover, it is immaterial whether the petitioner was advised of a right of appeal by his retained counsel. The petitioner’s plea was a guilty plea. Petitioner would have no right of appeal therefrom, though, if the plea were involuntary, he might challenge it in a post-conviction proceeding. This leaves for consideration the new issue of the voluntariness of petitioner’s plea under the rulings in United States v. Jackson, supra, and Boykin v. State, supra. It is the contention of the petitioner that Jackson automatically invalidates his plea as involuntary. The defendant, on the other hand, argues that Jackson is without application in principle to pleas entered under the statute to the violation of which petitioner plead and, in any event, petitioner’s plea antedated Jackson which is not to be given a retroactive application. It may be conceded that considerable reason supports the defendant in these contentions. At the time of petitioner’s plea, Section 17-533.4 of the. South Carolina Code, which was held invalid under State v. Harper (1968) 251 S.C. 379, 383, 162 S.E.2d 712, by reason of Jackson had not been enacted. Petitioner’s punishment under the jury verdict to which he consented, was fixed by Section 16-72, Code of Laws of South Carolina (1962). Under this section, petitioner’s punishment, whether by death or prison confinement, and irrespective of whether his guilty verdict was by consent or after a full trial, was required to be fixed by the determination of a duly impaneled jury, whose discretion in the premises could not be controlled. Thus, the rights of a" }, { "docid": "12549508", "title": "", "text": "confessing that he had in fact murdered his wife on the evening of August 3rd. On August 12, 1946, the Appellant was brought before a Grand Jury, which returned an indictment against him charging him with murder in the first degree. According to one of Appellant’s original co-counsel, Mr. James R. Brown, at or about the time of the indictment, Appellant and his two counsel discussed the circumstances surrounding the extraction of his confession. His counsel ob served that the Appellant was very frightened of the death penalty. His counsel purportedly advised him to plead not guilty and attack the confession if it did not reveal the true facts of the case. Mr. Brown testified, “we left the proposition open to him and told him that he knew the facts, that we didn’t. And he elected to plead guilty and accept the recommendation of the Attorney General [for a ninety-nine year sentence].” Transcript of January 29, 1965 at 108. On August 16, 1946, Appellant pled guilty to a charge of murder in the first degree and was convicted and sentenced to the penitentiary for a term of ninety-nine years. During his brief trial, evidence of the confession was introduced against the Appellant to prove certain elements of the crime had actually occurred. In dismissing Appellant’s first petition for habeas corpus, the District Court did not make factual findings concerning the allegedly unlawful character of Appellant’s confession and its purported tainting of Appellant’s guilty plea. Recently, the United States Supreme Court has set out with some particularity guidelines for determining the voluntariness of a guilty plea when the accused has purportedly been coerced by law enforcement officials into confessing to the crime with which he has been charged. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). In McMann v. Richardson, supra, the United States Supreme Court affirmed a District Court’s denial, without an evi-dentiary hearing, of several petitions for habeas corpus where the petitioners had pled guilty to felonies, after advice by" }, { "docid": "23158554", "title": "", "text": "contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214. Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest. The judgment is reversed and the case remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow. II. Turning to United States ex rel. Dash v. Follette, Foster Dash was sentenced on August 3, 1959, in the New York state courts on plea of guilty to a charge of robbery second degree, to imprisonment for a term of 8 to 12 years as a second felony offender. Dash sought release by writ of error coram nobis on the ground that a false confession was obtained from him after indictment in violation of his right to counsel, and that his plea of guilty was induced by advice of counsel that the confession would negate any chance of acquittal and by a threat by the trial" }, { "docid": "10639934", "title": "", "text": "plea, he makes no reference to any possible confession. More importantly — and this is decisive — the petitioner does not allege or claim, either in his petition or in his testimony, that his guilty plea was induced in the slightest by any possible confession. Absent any evidence of such coercion, the issue of the validity of a confession is foreclosed by the guilty plea. In this state of the record and without even a claim by the petitioner that his guilty plea was induced in any degree by a confession, relief on this ground must fail. Machibroda v. United States (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473; Lattin v. Cox (C.C.A.N.Mex.1966) 355 F.2d 397, 399. Similarly, the attack upon the indictment is without any basis. Such indictment clearly charges the crime on which the petitioner was sentenced. Thus, it charges that the petitioner “did make an assault on her the said * * * with intent her the said * * * violently and against her will, then and there feloniously to ravish and carnally know, * * * the said * * This is for all practical purposes the exact language of the statute under which the petitioner was sentenced. It is true the indictment includes counts charging rape and assault and battery. This is plainly permissible and customary under South Carolina practice (State v. Collins (1956) 228 S.C. 537, 548-549, 91 S.E.2d 259) and follows the generally sanctioned practice elsewhere. Howard v. United States (C.C.A.Cal.1967) 372 F.2d 294, 301, cert. denied 388 U.S. 915, 87 S.Ct. 2129, 18 L.Ed.2d 1356. Moreover, it is immaterial whether the petitioner was advised of a right of appeal by his retained counsel. The petitioner’s plea was a guilty plea. Petitioner would have no right of appeal therefrom, though, if the plea were involuntary, he might challenge it in a post-conviction proceeding. This leaves for consideration the new issue of the voluntariness of petitioner’s plea under the rulings in United States v. Jackson, supra, and Boykin v. State, supra. It is the contention of the petitioner that Jackson" }, { "docid": "22691373", "title": "", "text": "or promises and that he had not been frightened when he made the statement to the police. Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law. Petitioner’s retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petitioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment. The prose cutor and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea “freely without any fear or compulsion.” Upon acceptance of the plea, petitioner was sentenced to life imprisonment. In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty “freely, voluntarily, without threat, coercion or duress . . . The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review, affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge." }, { "docid": "15683190", "title": "", "text": "that petitioner’s plea of guilty was not voluntarily and understandingly made. There is no testimony that any prior police misconduct in any way influenced the plea. The District Court suggested the plea of guilty probably was induced in part because petitioner, charged with a capital offense, hoped for some leniency in the sentence to be imposed. There is no finding in this case that absent the so-called tainted evidence, the defendant would not have pleaded guilty. Furthermore, in United States v. French, supra, the petitioner contended that he would not have pleaded guilty except for the inadmissible confession. Nevertheless the Court held his plea of guilty was conclusive if understandingly and voluntarily made. In Watts v. United States, 107 U.S. App.D.C. 367, 278 F.2d 247, petitioner attempted to have his guilty plea set aside because he alleged it was induced by an inadmissible confession of a confederate. The Court said, 278 F.2d at pages 249-250: “ * * * We have held that an illegal arrest or confession rendered during a period of illegal de tention does not subject a sentence based upon a guilty plea to Sec. 2255 attack. * * * However, when the accused elects to plead guilty, even though seemingly induced to do so as a result of seeing the inadmissible confession of a confederate, the plea is not involuntary. * * * 99 Pertinent is United States v. Sturm, 7 Cir., 180 F.2d 413, cert. den. 339 U.S. 986, 70 S.Ct. 1008, 94 L.Ed. 1388. We pointed out that petitioner claimed his plea was not voluntarily made because of an alleged misapprehension of his rights. We stated, 180 F.2d page 416: “ * * * The conclusive answer to this is that defendant, when he signed waivers of indictment and venue, and at the time of his arraignment and plea of guilty, was represented by counsel of his own choice * * *. This circumstance, we think, compels us to reject the defendant’s contention that his plea was not made voluntarily and with knowledge of his legal rights.” In the case at bar, when the" }, { "docid": "2804772", "title": "", "text": "which unfairly influence an accused when deciding what his plea shall be. It is difficult to perceive of a more effective influence on a decision whether or not to plead guilty to a criminal offense than an agreement with a prosecuting officer relative to his recommendation as to a sentence. In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), where one of the allegations was that an assistant United States attorney advised the accused prior to arraignment, that the total sentence .on a plea of guilty would not exceed twenty years, when in fact it totaled forty years, the Court said; “There can be no doubt that, if the allegations in the petitioner’s motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A sentence based upon such a plea is open to collateral attack. * * * ” As said in Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927): “ * * * A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. * * ” See also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In proceedings after the guilty plea was entered, the sentencing judge stated that if the recommendation had been made it would have been rejected, and furthermore, that the county attorney at the motion for permission to withdraw the guilty plea made the recommendation, which was not accepted by the court. The Kansas Supreme Court, in upholding the" }, { "docid": "322759", "title": "", "text": "him, he pleaded guilty and was subsequently convicted. He was sentenced on the breaking and entering conviction and was placed on probation for the petit larceny conviction, sentencing being postponed. About two years later, Petitioner was charged with violation of his probation, and another information was filed against him, this time for robbery. Once again he appeared at arraignment with court-appointed counsel and pleaded guilty to both charges. His probation was then revoked, and he was sentenced on the petit larceny conviction, as well as on the robbery conviction. Those facts upon which the specific claims for relief are based will be set forth in conjunction with our disposition of the matters raised. 1. Petitioner first asserts that he was illegally arrested without a warrant. A naked allegation of illegal arrest is not grounds for the discharge of a state prisoner under 28 U.S.C. § 2254 unless Petitioner further claims that such arrest in some way deprived him of a fair trial. Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965); Green v. Yeager, 223 F.Supp. 544 (D.C., N.J. 1963) , aff’d, 332 F.2d 794 (3rd Cir. 1964) ; Madison v. Tahash, 249 F.Supp. 600 (D.C.Minn.1966); Nelson v. Hancock, 210 F.Supp. 60 (D.C.N.H.1962). 2. The requisite deprivation of a fair trial allegedly stems from the use of coercion to force Petitioner to make a confession. However, if there was a coerced confession, it was never used as evidence against the Petitioner —his convictions were upon pleas of guilty. A judgment on a plea of guilty which has been entered voluntarily on advice of counsel is not rendered invalid because Petitioner had made a confession which might have been inadmissible in evidence had Petitioner pleaded not guilty and gone to trial. The conviction in such a case is based upon the guilty plea and therefore cannot be collaterally attacked on this basis. The plea, if voluntarily and understandingly made, is conclusive as to Petitioner’s guilt, admitting all facts charged and waiving all non-jurisdictional defects in prior proceedings against him. Therefore the confession cannot be the basis of collateral attack. Busby v." }, { "docid": "15837618", "title": "", "text": "SOLOMON, Chief Judge. Petitioner filed an application for a writ of habeas corpus to set aside his conviction and twenty-year sentence based upon his plea of guilty to an information charging him with rape. Petitioner does not attack the five-year sentence for burglary, simultaneously imposed upon him. Petitioner admits that he committed the burglary and that he freely confessed and entered his plea on that count. However, petitioner alleges that he was coerced into signing a confession to the charge of rape. He further alleges that this coercion followed him into court and vitiated his waiver of indictment and right to counsel as well as his plea of guilty to the crime of rape. The evidence is éssentially undisputed. Petitioner had been under surveillance by the police for several months in connection not only with burglaries but also with a wave of criminal assaults upon women in various communities in Coos County, Oregon. The police had not arrested him earlier for burglaries which they saw him commit because they had reason to believe that he was committing the assaults and the public was clamoring for the apprehension of the culprit. On September 6, 1960, at approximately 11:00 P.M., petitioner was arrested in a strange apartment house. Upon his arrest, petitioner volunteered the information that he had entered the premises for the purpose of burglarizing an apartment but he refused to admit participating in any of the assaults. When the Sheriff and police officers insisted upon discussing the attacks on women, petitioner asked for an attorney. Petitioner was not acquainted with any attorneys in the area. At his request, the Sheriff placed three calls to local attorneys at about 1:30 A.M. Only one lawyer answered his telephone and he refused to come to the police station or to assist petitioner. The Sheriff then informed petitioner that he would take the petitioner before a magistrate at 10 o’clock in the morning. At no time was petitioner advised of his right to maintain silence, or that his statements could be used against him. In fact, the Sheriff told him that until he was" }, { "docid": "22691374", "title": "", "text": "the North Carolina Post-Conviction Hearing Act to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty “freely, voluntarily, without threat, coercion or duress . . . The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review, affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N. C. App. 27, 162 S. E. 2d 526 (1968). We granted certiorari, 395 U. S. 974 (1969), to consider petitioner’s federal constitutional claims. For the reasons presented below, we affirm. I Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker’s plea. It may be that under United States v. Jackson, 390 U. S. 570 (1968), it was unconstitutional to impose the death penalty under the statutory framework which ex isted in North Carolina at the time of Parker’s plea. Even so, we determined in Brady v. United States, ante, p. 742, that an otherwise valid plea is not involuntary because induced by" }, { "docid": "322772", "title": "", "text": "case of coercion — any defendant in a criminal case would have this fear. Nor does an agreement to dismiss other charges make out a case of coercion. Busby v. Holman, supra. Where a petitioner seeking writ of habeas corpus attacks a conviction on a guilty plea alleging coercion, the issue is whether the state induced the plea by overcoming petitioner’s ability to make a voluntary decision. Busby; Cortez v. United States, 337 F.2d 699 (9th Cir. 1964). It is recognized that when an allegedly coerced plea is the grounds asserted for a petition for writ of habeas corpus, the petition can be denied without a hearing only if the petition, the files and records of the case conclusively show that the prisoner is entitled to no relief. Weed v. United States, 342 F.2d 971 (5th Cir. 1965); Howell v. United States, 355 F.2d 173 (10th Cir. 1966). Even utilizing this test, this Court finds that Petitioner’s contention of a coerced plea is wholly without merit, for it is utterly uncorroborated by the transcript, petition and files. The transcript reveals that in response to the Criminal Court’s query, Petitioner affirmatively stated without equivocation that he had not been threatened in any way by anyone, and that he had been made no promises by anyone to induce a guilty plea. He testified that he was advised of his rights, that he understood the nature of the charges against him, and that he understood the consequences of his plea. Careful scrutiny of the record reveals no possible basis for Petitioner’s claim. His allegation that a “deal” of a guilty plea in exchange for leniency had been made and that he was fearful of a heavier sentence if he did not so plead is not sufficient to make out a case of coercion. Busby v. Holman, supra. Careful examination of the petition and transcript discloses nothing to indicate that the state induced the plea by overcoming Petitioner’s ability to make a voluntary decision. The record is indeed conclusive in showing that Petitioner is entitled to no relief. The Petition is therefore deficient on" }, { "docid": "13378157", "title": "", "text": "pleas of guilty. A preponderance of the evidence, therefore, shows, and the Court finds, that petitioner was not promised concurrent sentences by Attorney General Clements or any other representative of the Court as an inducement for his pleas of guilty to the two offenses. (b) That he was coerced by the officers who arrested him to make the confessions. Officer Ray Wilkerson is the only officer living who returned petitioner from Florida after he had been arrested by the officers in Florida. The officer who accompanied Officer Wilkerson on this trip is deceased. Officer Wilkerson testified positively that soon after petitioner was arrested he confessed to the charges and took the officers to the place where the gun, used in committing the offense, was located. Officer Wilkerson further stated that the petitioner advised him and the other officer that he wanted to get all of the offenses behind him at one hearing, and in the course of the conversation he confessed to the robbery of another taxicab driver which was made the basis of one of the indictments. Petitioner in his testimony does not say that the officers mistreated him in any respect during their conversation with him. The Court finds as a fact that the petitioner was not coerced in making confession to the crimes of robbery and in entering his pleas of guilty to those charges. (c) That his constitutional rights were violated in that he agreed to take a polygraph test in relation to the charge of robbery and murder of a taxicab driver and that while in a state of fear he confessed to two other crimes of robbery of taxicab drivers. The fact that petitioner confessed to other charges while taking a polygraph test does not make his confessions involuntary or inadmissible as evidence. This principle was announced by the Sixth Circuit Court of Appeals in the case of United States v. McDevitt, 328 F.2d 282. In that case, the Court said in part: “Appellant contends that his confession was the result of the polygraph test and therefore was inadmissible. * * * The present" }, { "docid": "4042872", "title": "", "text": "in recognition of the fact that a defendant, aware that a confession may be excludable as involuntary, may still enter a truly voluntary plea of guilty if he also knows that other admissible evidence will establish his guilt overwhelmingly. If it appears, however, that the plea was the coerced product of a tainted confession, the in voluntary plea, entered in ignorance of his rights, does not bar the collateral attack. 352 F.2d at 472. Nowhere does petitioner allege that the confession in any way affected his decision to plead guilty. The record indicates that petitioner knew the evidence was overwhelmingly against him. Petitioner admits his guilt: Q. Did you discuss with him and ask his advice concerning how you should plead? A. No, sir, I did not. I figured, well, I was — I knowed I was guilty so— I done it; I wasn’t denying that. And he just said we would — he would get me cf. as light as he could. Petitioner does not claim that the confession induced the guilty plea. He claims that the guilty plea was the product of threats of the electric chair and of coercion by his family and attorney. Because the confession did not effect the decision to plead guilty and its voluntariness is not a jurisdictional defect, petitioner is precluded from attacking the confession on habeas corpus. Finally, a plea of guilty is itself a conviction and nothing remains but to give judgment and determine the punishment. Boykin v. Alabama, supra; Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Whether or not the confession was the sole evidence introduced against petitioner has no constitutional significance. Petitioner’s last claim is that his counsel was ineffective. Thirteen years after petitioner’s conviction and after the death of his counsel, petitioner decides to make this claim. Under Wade v. Peyton, 378 F.2d 50 (4th Cir. 1967), this court is not required to consider extremely belated claims when the possibility of rebuttal is substantially diminished by the death of counsel. But further, the evidence does not disclose that petitioner’s contentions" }, { "docid": "8032950", "title": "", "text": "voluntary and that petitioner was represented by competent counsel, or if petitioner was unable to show that the plea was substantially motivated by the confession or the alleged incompetence of assigned counsel. We reverse and remand with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow. LUMBARD, Chief Judge (dissenting) : I dissent. The majority now require the state court, or perhaps the federal court in addition, to inquire into the voluntariness of a plea of guilty entered by Williams in the Bronx County Court in March 1956 to robbery in the second degree in settlement of an indictment which charged 5 felonies including rape and robbery. The trial court must now also inquire into the voluntariness of the confession which Williams claims he made and which he also claims was the inducing cause of his plea of guilty. For the reasons set forth in my dissenting opinion in United States ex rel. Ross v. McMann, 409 F.2d at pages 1029 to 1086, filed February 26, 1969, I would not require a trial court to inquire into the voluntariness of a plea of guilty entered in a state court prior to the Supreme Court decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), where the claim is that the plea was induced by an involuntary confession. In addition it seems to me that the claims of Williams are insubstantial on their face. It seems highly unlikely on this record that the only evidence against Williams could have been his own confession, as he now claims. The charges in the indictment included holding up one Mabel Cummings with a toy pistol, raping her and robbing her. The record discloses no allegations which make it believable that Mabel Cummings could not and would not" }, { "docid": "22604205", "title": "", "text": "Mr. Justice Jackson delivered the opinion of the Court. The Commonwealth of Pennsylvania holds petitioner prisoner under two indeterminate sentences, not exceeding 10 to 20 years, upon a plea of guilty to burglary and robbery. On review here of the State Supreme Court’s denial of habeas corpus, the prisoner demands a discharge by this Court on federal constitutional grounds. Petitioner, while a fugitive, was indicted on June 1, 1945, for burglary and armed robbery. Four of his alleged accomplices had been arrested on May 18, 1945, and signed a joint confession, while a fifth had been arrested on May 21, 1945, and had also confessed. Petitioner was arrested on June 3, 1945, and confessed on June 4. On June 5, after pleading guilty to two charges of robbery and two charges of burglary and not guilty to other charges, he was sentenced. Petitioner now alleges violation of his constitutional rights in that, except for a ten-minute conversation with his wife, he was held incommunicado for a period of 40 hours between his arrest and his plea of guilty. He does not allege that he was beaten, misused, threatened or intimidated, but only that he was held for that period and was several times interrogated. He does not allege that the questioning was continuous or that it had any coercive effect. The plea for relief because he was detained, as he claims, unlawfully is based on McNabb v. United States, 318 U. S. 332. But the rule there applied was one against use of confessions obtained during illegal detention and it was limited to federal courts, to which it was applied by virtue of our supervisory power. In this present case no confession was used because the plea of guilty in open court dispensed with proof of the crime. Hence, lawfulness of the detention is not a factor in determining admissibility of any confession and if he were temporarily detained illegally, it would have no bearing on the validity of his present confinement based on his plea of guilty, particularly since he makes no allegation that it induced the plea. Petitioner" }, { "docid": "2135942", "title": "", "text": "district court that the guilty plea was involuntary because while he was confined in the county jail on a charge of murder, the sheriff threatened that if he did not cop out or plead guilty “he was going to see that I got all the law would give.” He further alleges that the district attorney stated that if he did not plead guilty, a former conviction would be filed and he would be sentenced to 99 years. Also, he claims that his court appointed attorney told him that if the former conviction were charged, he would be unable to take the stand in his own defense. An examination of the relevant Oklahoma law reveals that a 99 year sentence is apparently the maximum which is imposed for the offense of first degree manslaughter in Oklahoma and this was brought to the petitioner’s attention at the time of his arraignment in the state district court. At this time he stated that he understood that he could receive a sentence within the limits of four years to 99 years. Advice as to the consequences of the plea certainly does not constitute coercion. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Lattin v. Cox, 355 F.2d 397, 400 (10th Cir. 1966). In the final analysis the petitioner’s case is reduced to his allegation that the sheriff told him that if he did not plead guilty he would get the maximum. This allegation standing alone is, to say the least, unimpressive. We do note, however, that if a plea of guilty is coerced, the law is clear that this violates due process. See Roscoe v. Hunter, 144 F.2d 91, 92 (10th Cir. 1944); cf. Reed v. Turner, 444 F.2d 206, 208-209 (10th Cir. 1971). See also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), which holds that an inquiry is necessary even though the allegations are illogical or apparently false. The allegation here is that the plea was obtained by threats and coercion. We are unable to say from the record" }, { "docid": "15683189", "title": "", "text": "this Circuit, a petitioner for a writ of habeas corpus who at his trial was represented by counsel of his own choosing, and after being duly admonished by the Court, enters a plea of guilty, is not entitled to a writ of habeas corpus, although prior thereto he may have been the victim of an unconstitutional search and seizure, and a delay in being taken before a magistrate, and that as a result thereof, he might have been induced, at least in part to confess the crime. In the case at bar, petitioner concedes that a voluntary and intentional plea of guilty constitutes a waiver of objections to prior proceedings, including prior violations of the defendant’s rights. United States v. French, 7 Cir., 274 F.2d 297; United States v. Kniess, 7 Cir., 264 F.2d 353. However, petitioner claims that this rule does not apply where the plea of guilty is induced by prior police conduct, and he claims that his plea of guilty was so induced. In the instant case, there is no evidence whatsoever that petitioner’s plea of guilty was not voluntarily and understandingly made. There is no testimony that any prior police misconduct in any way influenced the plea. The District Court suggested the plea of guilty probably was induced in part because petitioner, charged with a capital offense, hoped for some leniency in the sentence to be imposed. There is no finding in this case that absent the so-called tainted evidence, the defendant would not have pleaded guilty. Furthermore, in United States v. French, supra, the petitioner contended that he would not have pleaded guilty except for the inadmissible confession. Nevertheless the Court held his plea of guilty was conclusive if understandingly and voluntarily made. In Watts v. United States, 107 U.S. App.D.C. 367, 278 F.2d 247, petitioner attempted to have his guilty plea set aside because he alleged it was induced by an inadmissible confession of a confederate. The Court said, 278 F.2d at pages 249-250: “ * * * We have held that an illegal arrest or confession rendered during a period of illegal de" }, { "docid": "22691384", "title": "", "text": "any promise or forced you in any way to make this plea?” Petitioner: “No, sir.” The Court: “Did you sign this plea freely without any fear or compulsion?” Petitioner: “Yes, sir.” The Court: “Has any person promised you anything if you do this?” Petitioner: “No, sir.” App. 46. N. C. Gen. Stat. §§15-217 to 15-222 (Supp. 1969). N. C. Gen. Stat. § 7A-28 (1969 Repl. vol.). The statute authorizing guilty pleas to capital charges was repealed, effective March 25, 1969. See n. 2, supra. As a result of the repeal, a person who is charged with a capital offense and who is not allowed to plead to a lesser charge must apparently face a jury trial and a death penalty upon a verdict of guilty unless the jury recommends life imprisonment. In his affidavit authorizing the entry of a plea of guilty Parker stated that: “I have not been threatened or abused in any manner by any person and no promises have been made to me if I plead guilty to any charge.” See n. 3, supra. The North Carolina Court of Appeals noted that the prosecution may have had strong evidence against Parker in addition to the confession and that if other strong evidence existed the guilty plea could not be viewed as the product of the confession. 2 N. C. App. 27, 32, 162 S. E. 2d 526, 529 (1968). We find nothing in the record raising any doubts about the integrity of petitioner’s admission. The following appears in the findings entered after the post-conviction hearing in the state trial court: “[S]aid petitioner defendant freely admitted to his attorney his guilt of the crime with which he was charged, in fact said petitioner defendant Charles Lee Parker, upon cross examination at this hearing, and the Court so finds as a fact, has freely admitted his guilt of the capital offense of burglary and rape ...” “All exceptions to grand jurors on account of their disqualifications shall be taken before the petit jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if" } ]

[ { "docid": "1445486", "title": "", "text": "this petitioner was tried. The district court, without requiring the state to answer or holding a plenary hearing, assumed the fact of systematic exclusion but pointed out that the record before him showed neither a motion to quash the indictment nor a challenge to the petit jury array. The court also pointed out that it had been the law of the land for almost eight decades that discrimination against Negroes as to jury service was unconstitutional; that petitioner’s counsel, a resident of the community, was aware of the local practice and that the petitioner himself, a local resident must have been aware of the custom and was, therefore, in a position to call the matter to the attention of his counsel if systematic discrimination existed. The court concluded that since both the petitioner and his counsel were chargeable with knowledge of any violation of the petitioner’s constitutional rights, their failure to raise the issue at the trial constituted a waiver of the privilege. We hold that this is not the proper standard for deciding this issue. In Johnson v. Zerbst, 304 U.S. 458, at page 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the Court defined a waiver as “an intentional relinquishment or abandonment of a known right or privilege.” In that opinion, the Court reminded the bench and the bar that every reasonable presumption against a waiver of fundamental constitutional rights should be indulged. Again, in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the Court pointed out that mere silence of the record raised no presumption of waiver, nor should waiver be found in the absence of some affirmative conduct on the part of a defendant evidencing a deliberate and conscious rejection of a constitutional guarantee. The Court said: “Where, as in this case, the constitutional infirmity of trial without counsel is manifest, and there is not even an allegation, much less a showing, of affirmative waiver, the accused is entitled to relief from his unconstitutional conviction.” Id. at 517, 82 S.Ct. at 890. It remained for the Court in Fay v." } ]

[ { "docid": "6749776", "title": "", "text": "643, 17 L.Ed.2d 599 (1967), no similar challenge was raised on petitioner’s behalf less than three years later. The combination of these circumstances demonstrates that petitioner was convicted in violation of his sixth amendment right to counsel. He is therefore entitled to federal habeas relief on that ground. Finally, petitioner was. indicted and tried by juries whose members were selected in clear violation of the constitution. Despite this undisputed denial of petitioner’s rights, however, respondent asserts that petitioner is not entitled to relief on this ground. In support of this position, respondent argues that petitioner’s failure to object to the illegal jury composition before trial is a waiver of that claim. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the black petitioner in a 28 U.S.C. § 2255 proceeding challenged his federal conviction on the ground that the indicting grand jury had been discriminatorily composed. Petitioner had first raised this issue in his collateral attack and had thus failed to comply with Rule 12 of the Federal Rules of Criminal Procedure which requires that such a challenge be made prior to trial. Rejecting petitioner’s claim that waiver of a constitutional right must be undertaken “knowingly and understanding^” and that waiver of this challenge could not result from a failure to object under cases such as Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court held that petitioner’s claim was foreclosed by the express waiver provision in the rule. The Fifth Circuit has adopted the same position with respect to state prisoners when the state has a procedural rule requiring that objections to the composition of juries be lodged prior to trial. E. g., Dumont v. Estelle, 513 F.2d 793 (5th Cir. 1975) (Texas); Morris v. Sullivan, 497 F.2d 544 (5th Cir. 1974) (Alabama); Newman v. Henderson, 496 F.2d 896 (5th Cir. 1974) (Louisiana); Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974) (Florida). The beginning point for consideration of whether Georgia has such a procedural rule in Ga.Code Ann. § 59 — 803, which provides: “The accused" }, { "docid": "3335292", "title": "", "text": "of the panel, that the victim had previously said she could identify Marzullo. The prosecutor dismissed that case. He then proceeded to call for trial on a different indictment a second case against Marzullo involving rape and related charges. Defense counsel waived any objection to the jurors, who had heard the above discussion in the first case, being on the panel in the second case. As to waiver, Judge Butzner wrote (at 546): The state’s defenses in the habeas proceeding of waiver and trial tactics are not supported by the records of either the state trial or the post-conviction hearing. Before the trial, Marzullo’s attorney explained the procedure for striking the jury, but there is no evidence that he advised Marzullo of his right to have the proceedings about the first indictment conducted in the absence of the jury. Without proof that Marzullo knew his rights, waiver cannot be presumed. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The last sentence quoted above is completely applicable herein. Procedural Default Although Bromwell did not knowingly waive any constitutional right during the pre-trial motion and voir dire examination period, his failure then to object to the discussion before the jury panel might constitute an “adequate and independent state procedural ground” barring federal habeas corpus review with regard to that question. The Supreme Court, in two recent decisions, has elaborated upon that concept. In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), a Louisiana state prisoner sought federal habeas corpus relief on the ground that blacks were unconstitutionally excluded from the grand jury which indicted him. The petitioner had failed to raise any objection to the composition of the grand jury before trial, as required by Louisiana law, which provided that “all such objections shall be considered as waived and shall not after-wards be urged or heard.” 425 U.S. at 537, 96 S.Ct. at 1709. Relying on Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), in which the Court had found a procedural default because" }, { "docid": "7633105", "title": "", "text": "TJOFLAT, Circuit Judge: This appeal challenges the dismissal of a habeas corpus petition by the district court. The petitioner’s primary complaint is that the district court erred in its determination that he had waived his right under state law to contest the constitutionality of the composition of the grand jury. We find that the lower court correctly so held and affirm. In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), the Supreme Court had before it the question of whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding. Id. at 537, 96 S.Ct. 1708. The petitioner in that case had waived that right under the Louisiana law in force at the time of his trial and conviction. Drawing support from Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Court concluded that to attack a grand jury composition collaterally in federal court when such right had been waived under state law, the petitioner had to show both cause for failing to make a timely challenge and actual prejudice. 425 U.S. at 542, 96 S.Ct. 1708. The Francis Court specifically distinguished cases where state law would not impose a waiver. Id. at 542 n.5, 96 S.Ct. 1708. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), would indicate that a federal habeas court need not stay its hand in such a situation. The petitioner argues strenuously that under Georgia law he has not waived his right to object to the grand jury. He relies on Ga.Code Ann. § 50-127(1) (1974), which provides in pertinent part, Rights conferred ... by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently. The Georgia Supreme" }, { "docid": "1445489", "title": "", "text": "choice of the petitioner. * * * A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.” 372 U.S. at 439, 83 S.Ct. at 849. (Emphasis added.) We cannot agree that the failure to object at his trial to the jury’s composition was the considered choice of Sandy Lee McNeil. There is no evidence which shows that Sandy Lee McNeil, after intelligent consultation with his attorney, understandingly and knowingly forewent the privilege of being indicted and tried by constitutionally selected juries. In short, given the Fay v. Noia standard, there is no basis of support for the conclusion that Sandy Lee McNeil waived the fundamental constitutional right he now asserts. We hold, therefore, that there was no intentional relinquishment of a known right, and for the state to subject a defendant to this situation amounts to a denial of due process and equal protection of the law guaranteed by the Fourteenth Amendment. Cobb v. Balkcom, 339 F.2d 95 (5 Cir. 1964). One of the primary cases upon which the court below relied was this court’s decision in United States ex rel. Jackson v. Brady, 133 F.2d 476, cert. denied, 319 U.S. 746, 63 S.Ct. 1029, 87 L.Ed. 1702 (1943). That case involved an appeal by two Negroes from the district court’s dismissal of their petitions for writs of ha beas corpus. The two defendants charged that there had been racial discrimination in the selection of the grand jury which indicted and the petit jury which tried and convicted them. No objection to the method of selection of the grand jurors was made at any time during the state court proceedings, and the objection to the composition of the petit jury took the form of only a general challenge to the array. When the Brady case was before the lower court, the district judge took evidence on the jury discrimination point and found as an ultimate" }, { "docid": "7582104", "title": "", "text": "AINSWORTH, Circuit Judge: Leon Hamilton appeals from the denial by the District Court of his petition for habeas corpus involving an Alabama State Court conviction. We are asked to determine whether a defendant who failed to exercise his right to challenge the systematic exclusion of members of his own race from the jury that tried him, at the time of trial and 36 years thereafter, is deemed to have waived that right. The District Court held that the undue delay constitutes a waiver. We disagree and, therefore, reverse. Appellant, a Negro, is presently serving a 99-year sentence as a result of a 1932 conviction of robbery, a capital offense, in the Circuit Court for Montgomery County, Alabama, having been found guilty by an all-white jury of robbing a night watchman of his pistol. Thirty-six years later, in January 1968, appellant filed a petition for writ of error coram nobis in the Montgomery County Circuit Court, and raised for the first time the issue that his conviction was unconstitutionally void because of systematic exclusion of Negroes from Montgomery County, Alabama juries and the jury which tried him. His petition was denied, and the Supreme Court of Alabama affirmed. Thereafter, appellant filed a petition for habeas corpus in the United States District Court for the Middle District of Alabama, again alleging, inter alia, illegal racial composition of the jury. The District Court denied the petition, observing that “the undue length of time has resulted in the nonavailability of counsel that represented petitioner by reason of death; the judge that presided at the trial is also deceased, as well as the state prosecutor; and the state court record has been lost. Petitioner offers no explanation for the undue delay. Under such circumstances, this Court, without passing on the question of whether the state court has reliably determined the factual issues, is contrained to conclude that this undue delay constitutes a waiver of the issue now presented to this Court by petitioner.” It has long been recognized that systematic exclusion of Negroes from criminal juries is a denial of constitutional due process and equal" }, { "docid": "724335", "title": "", "text": "him. This contention was premised on the claim that the State of Nebraska was without jurisdiction to try him for an offense committed by an Indian against another Indian within the territorial confines of the Omaha Indian Reservation. The Nebraska Supreme Court rejected this jurisdictional argument. Robinson v. Sigler, 187 Neb. 144, 187 N.W.2d 756 (1971). The federal district court held that petitioner had failed to exhaust his state remedies as to his challenge on most of the constitutional errors occurring at his trial. These include his challenge that the Thurston County jury selection system excludes Indians from jury panels, that his trial counsel was ineffective and that the prosecution suppressed evidence favorable to the petitioner and used perjured testimony. Robinson argues that the district court should assume jurisdiction because it would be a futile gesture for him to return to state court since he has already filed one “post-conviction” action in the state courts. He points to language in State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971), which indicates a petitioner will be barred from piecemeal litigation and may only file one post-conviction action. However, it is settled law that a petitioner may not be proeedurally estopped from filing successive post-conviction suits as long as he has not waived his right to raise the ground relied upon or as long as the ground raised has not been actually litigated and decided adversely to the petitioner. Cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). As we declared in Harris v. Brewer, 434 F.2d 166, 168-169 (8 Cir. 1970), waiver of a constitutional right is a federal question and must meet federal standards. Fay v. Noia, supra at 439, 83 S.Ct. 822; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Nevertheless, Judge Urbom observed that petitioner would not be es-topped from refiling his claims in a state post-conviction proceeding since his" }, { "docid": "4436926", "title": "", "text": "raised it in his first post-conviction petition. By failing to do so, he has waived the issue for purposes of Illinois post-conviction relief. The Illinois courts do not provide petitioner with a meaningful remedy because there is no indication that the Illinois courts would relax the waiver rule to consider the merits of petitioner’s ineffective assistance of appellate counsel claim. Therefore, this court will not require petitioner to return to Illinois courts; the requirements of 28 U.S.C. § 2254(b) have been satisfied. See Perry v. Fairman, supra; United States ex. rel. Williams v. Brantley, supra. Petitioner has exhausted his claims as required by 28 U.S.C. § 2254(b) because he no longer has a meaningful remedy in the Illinois courts. The magistrate erred in dismissing petitioner’s habeas petition pursuant to Rose v. Lundy, supra, because all petitioner’s claims have been exhausted. III. CONCLUSION For the foregoing reasons, the case is reversed and remanded for consideration on the merits. . At the time petitioner filed the present habeas petition, he did not think that he was being represented on appeal from the denial of his post-conviction petition. Respondent’s answer to petitioner’s habeas petition indicates that, in fact, petitioner was represented on appeal from the denial of his post-conviction petition. Therefore, we need not concern ourselves with this last allegation. . Petitioner’s other claim concerning the jury selection process, has been presented to the Illinois courts in a post-conviction petition, and, therefore, is exhausted for purposes of federal habeas review. . It would be more appropriate to use the term “forfeiture” because the term “waiver” generally refers to “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Illinois courts, however, use the term “waiver.” We will use the term “waiver” in this discussion. . In several motions to the district court, petitioner claims that he had attempted to raise the issue of ineffective assistance of appellate counsel throughout the post-conviction proceeding and appeal. He asserts that his counsel for his post-conviction petition raised the issue orally" }, { "docid": "18039319", "title": "", "text": "Conclusion of Law No. 7, Appendix I infra. This determination was based on the state court’s findings that “the attorneys for petitioner” failed to move to quash the indictment returned by the grand jury or to object to the composition of the petit jury venire. See Findings of Fact Nos. 29-36, Appendix I infra. In considering the waiver argument we note at once that the state court’s findings are cast in terms of decisions on the part of appellant’s lawyers and not in terms of decisions in which appellant himself participated in a knowledgeable manner. We do not base our rejection of the State’s contention on this fact, hot, - ever, for we perceive in the waiver argument an even more fundamental flaw. It has long been held that waiver of a constitutional right or privilege means “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 82 L.Ed. 1461 (emphasis added). Accordingly, the courts have repeatedly ruled that one cannot waive a constitutional right prior to the time such a right is declared to exist. See, e. g., Grosso v. United States, 1968, 390 U.S. 62, 70-71, 88 S.Ct. 709, 19 L.Ed.2d 906; Baker v. Wainwright, 5 Cir. 1970, 422 F.2d 145, 149-150; Moreno v. Beto, 5 Cir., 1969, 415 F.2d 154. Applying these principles in the present case, we must conclude that appellant could not have waived his rights, for it was not until 1954 — twelve years after appellant’s indictment and trial — that Texas recognized the right of Mexican-American defendants to protest the exclusion or underrepresentation of Mexican-Americans in the composition of grand juries and petit jury venires. Indeed, the Texas Court of Criminal Appeals in the 1940’s and the 1950’s repeatedly held that Mexican-Amerieans could not be considered as. an identifiable ethnic group for purposes of jury composition cases. Sanchez v. State, 1944, 147 Tex.Cr.R. 436, 181 S.W.2d 87; Salazar v. State, 1946, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Sanchez v. State, 1951, 156 Tex.Cr.R. 243, 243 S.W.2d 700; Hernandez v. State," }, { "docid": "21424153", "title": "", "text": "Miss. 699, 171 So.2d 129 (1965). The depositions of the supervisors establish, at most, that they did not act in bad faith or take affirmative action to prevent Negroes from appearing on the jury lists. They do not persuade the court that the wide racial disparity was the product of chance alone (even if that would be sufficient; see Collins v. Walker, 335 F.2d 417 (5th Cir. 1964)), or of an en masse abstention of Negroes from voter registration so as to render themselves ineligible for jury duty. United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 78 (5th Cir. 1959). In short, respondent’s evidence does not refute or overcome the prima facie case made by petitioner that there was systematic exclusion of Negroes from the jury system. Thus, petitioner’s indictment and trial by racially defective grand and petit juries deprived him of both due process and equal protection of the law, and the resulting conviction cannot stand. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). The main thrust of respondent’s argument is that petitioner waived the right to seek relief here on this ground because no challenge was made to the composition of the juries on the trial and direct appeal. Racial exclusion from the juries was seriously urged as a ground for relief for the first time in the statutory applications to the state supreme court for leave to file a petition for writ of error coram nobis. Although the Supreme Court of Mississippi noted that counsel for petitioner had stated in the state habeas corpus hearing that no contention was then being made that Negroes were systematically excluded from the jury system, that court did not deny relief because of any procedural default. Instead, the claim of racial exclusion appears to have been denied on the merits because the court was convinced “that the testimony fails to show that petitioner was denied any rights or that he was unlawfully treated or unconstitutionally or wrongfully convicted.” Smith" }, { "docid": "21884422", "title": "", "text": "rights had been violated. Consequently, Forman’s habeas petition was conditionally granted, and a new trial was ordered. II. This Court has not previously determined whether the standards of Fay v. Noia, supra, or Wainwright v. Sykes, supra, govern the availability in a habeas corpus challenge of a constitutional claim not raised on direct appeal from a state court conviction. The issue was noted in Gale v. Harris, 580 F.2d 52, 53 n. 1 (2d Cir. 1978), cert. denied, 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979), but its resolution was not necessary for decision of that case. This appeal poses the issue directly because there was no deliberate by-pass and hence petitioner’s constitutional claim would be available under Noia but, as will appear, we conclude that his claim is not available under Sykes. Both Noia and Sykes cast the issue in terms of waiver, but it is apparent that the two decisions assign different meanings to that concept. Noia uses the traditional test for determining waiver of a constitutional right, whether there has been “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), for determining whether a deliberate by-pass of an available state court remedy has occurred. 372 U.S. at 439, 83 S.Ct. at 849. Sykes shifts the inquiry away from an examination of the petitioner’s knowledge and intention concerning assertion of his claim, and instead focuses on whether he in fact had a justifiable reason for not asserting his claim. In the absence of such a reason, the claim is deemed to be forfeited, regardless of whether the petitioner, or his counsel acting for him, consciously intended to waive a claim known to exist. Even if a justifiable reason exists, Sykes also deems the claim to be forfeited unless the petitioner can show that the failure to assert it caused him “actual prejudice.” 433 U.S. at 91, 97 S.Ct. at 2508. We think the integrity of the term “waiver” will be better maintained in this context if it is used," }, { "docid": "7633106", "title": "", "text": "in federal court when such right had been waived under state law, the petitioner had to show both cause for failing to make a timely challenge and actual prejudice. 425 U.S. at 542, 96 S.Ct. 1708. The Francis Court specifically distinguished cases where state law would not impose a waiver. Id. at 542 n.5, 96 S.Ct. 1708. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), would indicate that a federal habeas court need not stay its hand in such a situation. The petitioner argues strenuously that under Georgia law he has not waived his right to object to the grand jury. He relies on Ga.Code Ann. § 50-127(1) (1974), which provides in pertinent part, Rights conferred ... by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently. The Georgia Supreme Court has interpreted this provision to mean that unless there was an explicit waiver by the defendant, federal constitutional challenges, including those to grand juries, may be raised for the first time on habeas petitions. Mitchell v. State, 229 Ga. 781, 194 S.E.2d 414 (1972); see, e. g., Johnson v. Caldwell, 228 Ga. 776, 187 S.E.2d 844 (1972). But see Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1975); Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972). We find this section inapplicable, however. The petitioner was indicted, tried and convicted of rape in the Superior Court of Fulton County in early 1967. He was sentenced on June 16 of that year. Section 50-127(1) did not become operative law, though, until July 1. 1967 Ga.Laws 835. Prior to that time, the law of Georgia had been clear that failure to challenge the grand jury array before trial resulted in a waiver of any such challenge. Dennis v. Hopper, 548 F.2d 589 (5th Cir. 1977); Blevins v. State, 220 Ga. 720, 141 S.E.2d 426" }, { "docid": "21424154", "title": "", "text": "of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). The main thrust of respondent’s argument is that petitioner waived the right to seek relief here on this ground because no challenge was made to the composition of the juries on the trial and direct appeal. Racial exclusion from the juries was seriously urged as a ground for relief for the first time in the statutory applications to the state supreme court for leave to file a petition for writ of error coram nobis. Although the Supreme Court of Mississippi noted that counsel for petitioner had stated in the state habeas corpus hearing that no contention was then being made that Negroes were systematically excluded from the jury system, that court did not deny relief because of any procedural default. Instead, the claim of racial exclusion appears to have been denied on the merits because the court was convinced “that the testimony fails to show that petitioner was denied any rights or that he was unlawfully treated or unconstitutionally or wrongfully convicted.” Smith v. State, Miss., 158 So.2d 686, 687 (1963). If the state supreme court did not deem such relief barred by waiver and instead considered petitioner’s claims on the merits, this court is not concerned with any procedural default. Coleman v. State of Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964). If, however, the state court’s basis for denial of relief on the ground of racial exclusion was petitioner’s failure to make a timely challenge to the juries in the trial court, the result must be the same. Petitioner’s attorney, who was appointed by the court after return of the indictment, testified that he did not believe that Negroes were systematically excluded from juries in Madison County. Obviously, the attorney did not consult petitioner on the question of whether he desired to forego his right to challenge the illegal juries, since the attorney believed them to be legal. In such circumstances, this court cannot say that petitioner knowingly and understandingly waived the privilege of seeking to vindicate his federal rights to racially nondiscriminatory" }, { "docid": "22601269", "title": "", "text": "he did not discuss double jeopardy issues with respondents prior to their pleas, and that respondents had not considered the possibility of raising a double jeopardy defense before pleading. Respondents contend that, under these circumstances, they cannot be held to have waived the right to raise a double jeopardy defense because there was no “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Our decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty. Waiver in that sense is not required. For example, the respondent in Tollett pleaded guilty to first-degree murder, and later filed a petition for habeas corpus contending that his plea should be set aside because black citizens had been excluded from the grand jury that indicted him. The collateral challenge was foreclosed by the earlier guilty plea. Although at the time of the indictment the facts relating to the selection of the grand jury were not known to respondent and his attorney, we held that to be irrelevant: “If the issue were to be cast solely in terms of ‘waiver,’ the Court of Appeals was undoubtedly correct in concluding that there had been no such waiver here. But just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, we conclude that respondent’s guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.” 411 U. S., at 266. See also Menna, 423 U. S., at 62, n. 2 (“[W]aiver was not the basic ingredient of this line of cases”). The Crockett affidavit, as a consequence, has no bearing on whether respondents’ guilty plea served as a relinquishment of their opportunity to receive a factual hearing on a double jeopardy claim. Relinquishment derives not from any inquiry into a defendant’s subjective understanding of the range of potential defenses, but from the admissions neces sarily made upon entry of a voluntary plea of guilty. The" }, { "docid": "4436927", "title": "", "text": "represented on appeal from the denial of his post-conviction petition. Respondent’s answer to petitioner’s habeas petition indicates that, in fact, petitioner was represented on appeal from the denial of his post-conviction petition. Therefore, we need not concern ourselves with this last allegation. . Petitioner’s other claim concerning the jury selection process, has been presented to the Illinois courts in a post-conviction petition, and, therefore, is exhausted for purposes of federal habeas review. . It would be more appropriate to use the term “forfeiture” because the term “waiver” generally refers to “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Illinois courts, however, use the term “waiver.” We will use the term “waiver” in this discussion. . In several motions to the district court, petitioner claims that he had attempted to raise the issue of ineffective assistance of appellate counsel throughout the post-conviction proceeding and appeal. He asserts that his counsel for his post-conviction petition raised the issue orally before the trial court (Memorandum of Law, filed June 1, 1982, Original Record on Appeal, # 12). The trial court did not rule on the issue. Petitioner contends that he asked his post-conviction counsel to raise the issue of ineffective appellate counsel on appeal from the denial of his post-conviction petition. The Illinois Appellate Defender’s office moved for leave to withdraw due to a potential conflict because that office represented petitioner on direct appeal. The court appointed another attorney who did not raise this issue and petitioner claims that he failed to secure all necessary trial records concerning jury selection in Madison County. Petitioner’s contentions, liberally construed, may be asserting a claim of ineffective assistance of post-conviction and post-conviction appellate counsels. In the alternative, he may be trying to assert that the issue was presented to the post-conviction trial court during the proceedings and, therefore, is exhausted. It appears, however, that to effectively raise an issue in a post-conviction petition, it must be included in writing in the petition or amended petition. Ill.Rev.Stat. ch. 38," }, { "docid": "2874715", "title": "", "text": "of systematic exclusion of Negroes from jury service, placing the burden on respondent to refute such evidence by showing an adequate justification for the long continued racial disparity. United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962). Token summoning of Negroes for jury service neither meets that burden nor complies with the constitutional standard. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Petitioner established a prima facie case of systematic exclusion of Negroes from the jury system. Respondent did not carry the burden of refuting it, and it follows that this court must hold that petitioner was deprived of due process and equal protection of the laws by his second conviction. Indeed, the recent decision of the Supreme Court of Mississippi in Harper v. State, 251 Miss. 699, 171 So.2d 129 (1965) demonstrates that the state court would have reached the same result on Gordon’s second appeal as it reached on his first, if the issue of jury exclusion had been presented to it, and that he would have been afforded collateral relief in the state courts, except for the state supreme court’s view that such a course was closed by the doctrine of waiver. If that view must prevail here, the decision that petitioner suffered a denial of his constitutional rights would not authorize the relief sought. The state court’s finding of an effective waiver is entitled to respect but does not prevent independent determination of that question by this court now, since waiver affecting federal rights is a federal question. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). That question may be resolved against petitioner only if the court discerns that there was “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), The court may find that an applicant for habeas corpus intentionally relinquished or abandoned the right in question only if it appears that he understandingly and knowingly refrained from seeking to vindicate his federal claims in the" }, { "docid": "22763535", "title": "", "text": "he was unconstitutionally indicted because blacks had been disproportionately excluded from the grand jury that had indicted him. The state trial judge denied relief on the ground that petitioner had been represented by competent counsel, that counsel had considered but rejected the idea.of challenging the grand jury array, and that the time limit for making such a challenge (under the Louisiana statute which held that any challenges not asserted in a timely fashion were automatically waived) had expired. After the Louisiana Supreme Court denied petitioner’s combined petition for certiorari and writ of habeas corpus, he petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. That court granted the writ on the ground that the Orleans Parish grand jury, which had been chosen by the Orleans Parish Jury Commission intentionally and systematically to exclude daily wage earners, was unconstitutionally constituted in that it excluded a disproportionate number of blacks and was not an impartial jury representing a cross-section of the community. The court, relying on Fay v. Noia, 372 U. S. 391 (1963), and Johnson v. Zerbst, 304 U. S. 458 (1938), noted that although petitioner could not now raise his grand jury challenge in the state courts, there was no similar bar to federal habeas relief because petitioner had not intentionally relinquished or abandoned his constitutional rights or deliberately bypassed the state procedure for raising those rights. In response to the State's contention that this collateral challenge to the grand jury's composition was precluded by the then recent decision in Davis v. United States, supra, the District Court held that assuming, arguendo, that mere failure to raise an issue could constitute a waiver, there was sufficient “cause” shown — the standard upheld in sustaining Rule 12 (b) (2) in Davis — to justify relief in light of the course of conduct of petitioner's counsel.* Given these facts, the Court's unexplained imposition of an “actual prejudice” requirement for collateral relief from the state procedural default looms even more oppressive. The District Court has found that the grand jury that indicted petitioner" }, { "docid": "2874716", "title": "", "text": "he would have been afforded collateral relief in the state courts, except for the state supreme court’s view that such a course was closed by the doctrine of waiver. If that view must prevail here, the decision that petitioner suffered a denial of his constitutional rights would not authorize the relief sought. The state court’s finding of an effective waiver is entitled to respect but does not prevent independent determination of that question by this court now, since waiver affecting federal rights is a federal question. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). That question may be resolved against petitioner only if the court discerns that there was “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), The court may find that an applicant for habeas corpus intentionally relinquished or abandoned the right in question only if it appears that he understandingly and knowingly refrained from seeking to vindicate his federal claims in the state courts so as to deliberately bypass state procedures. There must have been a considered choice by the accused, rather than a choice made only by counsel in which petitioner did not participate. Fay v. Noia, supra. Waiver of federal rights in state criminal proceedings as an impediment to collateral relief through federal habeas corpus has been the subject of four significant decisions of the Court of Appeals for this circuit. United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1959); United States ex rel. Seals v. Wiman, supra; Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964); and Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964). In each of these a Negro defendant had been convicted of a capital crime in the state courts and sentenced to death. Systematic exclusion of Negroes from both the grand and petit juries was established in each ease, but in none of the cases were direct attacks on this deprivation of constitutional rights made in the state courts within the time prescribed by state" }, { "docid": "18039318", "title": "", "text": "statistical chasm which has been shown to exist. Nor do we attach significance to the finding that the various grand jury commissioners who selected grand jurors in El Paso County “did not [consciously] exclude people from grand jury service on the basis of race, creed or color.” Finding of Fact No. 40 Appendix I, infra. The results of the jury selection process are what count, and the results in this case clearly show discrimination against Mexican-Americans in the selection of grand jury, members. We therefore hold that— on the basis of the grand jury figures alone — appellant has successfully discharged his burden of proof. II. Even if there is merit in appellant’s arguments concerning the composition of the grand jury and the petit jury venire, the State argues that appellant waived his right to raise these arguments by failing to take appropriate actions at trial. The court below accepted this argument, adopting the state court’s conclusion that the contentions now made by Muniz were “knowingly and effectively waived at the time of petitioner’s trial.” Conclusion of Law No. 7, Appendix I infra. This determination was based on the state court’s findings that “the attorneys for petitioner” failed to move to quash the indictment returned by the grand jury or to object to the composition of the petit jury venire. See Findings of Fact Nos. 29-36, Appendix I infra. In considering the waiver argument we note at once that the state court’s findings are cast in terms of decisions on the part of appellant’s lawyers and not in terms of decisions in which appellant himself participated in a knowledgeable manner. We do not base our rejection of the State’s contention on this fact, hot, - ever, for we perceive in the waiver argument an even more fundamental flaw. It has long been held that waiver of a constitutional right or privilege means “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 82 L.Ed. 1461 (emphasis added). Accordingly, the courts have repeatedly ruled that one cannot waive" }, { "docid": "22718265", "title": "", "text": "the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim by failure to raise it before pleading to the indictment, and by pleading guilty. Respondent then filed in the United States District Court the petition for habeas corpus which commenced the present litigation, asserting the denial of his constitutional right by reason of the systematic exclusion of Negroes from grand jury service. Petitioner, in effect, conceded such systematic exclusion to have existed, and the District Court so found. The issue upon which the District Court and the Court of Appeals focused was whether respondent’s failure to object to the indictment within the time provided by Tennessee law constituted a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury. At a state hearing, respondent testified that his lawyer did not inform him of his constitutional rights with respect to the composition of the grand jury, that he did not know how the grand jury was selected or that Negroes were systematically excluded, and that his attorney did not tell him that he could have challenged the indictment, or that failure to challenge it would preclude him from later raising that issue. An unchallenged affidavit submitted by the attorney who represented respondent in the 1948 criminal proceeding stated that counsel did not know as a matter of fact that Negroes were systematically excluded from the Davidson County grand jury, and that therefore there had been no occasion to advise respondent of any rights he had as to the composition or method of selection of that body. On the basis of this evidence, the Court of Appeals held that the record demonstrated no such “waiver” of constitutional rights as that term was defined in Johnson v. Zerbst, 304 U. S. 458, 464 (1938) — “an intentional relinquishment or abandonment of a known right or privilege.” The Court of Appeals went on to affirm the judgment of the District Court, which had ordered respondent released from custody because Negroes had been excluded from the grand jury which indicted him for the offense in question." }, { "docid": "1445488", "title": "", "text": "Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), to restate in emphatic language what it had said about waiver in earlier decisions. Mr. Justice Brennan, writing for the Court in this landmark decision, declared that: “The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] — ‘an intentional relinquishment or abandonment of a known right or privilege’ — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits * * *. At all events we wish it clearly understood that the standard [of waiver] here put forth depends on the considered choice of the petitioner. * * * A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.” 372 U.S. at 439, 83 S.Ct. at 849. (Emphasis added.) We cannot agree that the failure to object at his trial to the jury’s composition was the considered choice of Sandy Lee McNeil. There is no evidence which shows that Sandy Lee McNeil, after intelligent consultation with his attorney, understandingly and knowingly forewent the privilege of being indicted and tried by constitutionally selected juries. In short, given the Fay v. Noia standard, there is no basis of support for the conclusion that Sandy Lee McNeil waived the fundamental constitutional right he now asserts. We hold, therefore, that there was no intentional relinquishment of a known right, and for the state to subject a defendant to this situation amounts to a denial of due" } ]

[ { "docid": "23205928", "title": "", "text": "custom in the Air Force which prohibited fraternization and made criminal “the association of officers with enlisted personnel on terms of military equality.” However, the court below found “that at the time of the offenses in issue, there did not exist a clear-cut standard for gauging so called ‘fraternization’ in the Air Force.” Id. at 865. Furthermore, the court specifically [found] that as a matter of fact and law the custom in the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable. Id. at 869 (footnote omitted). II In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Supreme Court emphasized that “the military is, by necessity, a specialized society separate from civilian society.” Id. at 743, 94 S.Ct. at 2555. Moreover, “to maintain the discipline essential to perform its mission effectively, the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’ ” Id. at 744, 94 S.Ct. at 2556. The Supreme Court pointed out that Articles 133 and 134 of the Uniform Code have a lineage extending back more than three centuries, id. at 745-46, 94 S.Ct. at 2556-57; and that “[decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134.” Id. at 746-47, 94 S.Ct. at 2557. Thus, in 1857, the Court had “upheld the Navy’s general article, which provided that ‘[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.’ ” Id. at 747, 94 S.Ct. at 2557, citing Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857). The rationale for this result had been that, “[Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse;" } ]

[ { "docid": "369526", "title": "", "text": "committed by persons in the Department of the Navy which come under this observation. (Emphasis added.) Since the word “this,” which has been present since 1979, renders the directive incomprehensible, I shall assume for the moment that the language was intended to be “their observation.” In that event, Article 1139 would seem to impose an obligation to report all offenses of any kind — whether violations of military law, state law, or local ordinances, and perhaps even violations of honor codes. I suspect that the drafters of Article 1139 did not intend to create such a sweeping obligation; but I cannot be sure. Likewise, I am unsure what is meant by the regulation’s reference to “proper authority” — especially if the term “offenses” extends beyond violations of military law. In United States v. Heyward, 22 M.J. 35, 38 (C.M.A. 1986) (Everett, C.J., concurring), I observed: For the most part, the common law was reluctant to impose affirmative duties — whether to rescue others, to report crimes, or otherwise. See Note, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787 (1985). Most American legislatures and courts have shared this reluctance. Thus, crimes like misprision of a felony or being an accessory after the fact have generally been interpreted to require more than a failure to act. Moreover, in drafting its Model Penal Code, the American Law Institute rejected very modest proposals to create affirmative duties enforced by punishment. Some widespread attitudes in our society may underlie the unwillingness to punish those who refuse to act — even when such action would help law enforcement or preserve the public safety. Our vernacular reflects these attitudes in the use of terms like “stool pigeon,” “rat,” “snitch” and “tattletale” — terms which make clear that those who report others’ misdeeds often are unpopular. While some institutions maintain honor codes, which may require the reporting of observed infractions, a substantial portion of our citizenry are unwilling to “get involved” by preventing or reporting crimes. I do not applaud or condone the unwillingness many have" }, { "docid": "14263394", "title": "", "text": "person of ordinary intelligence. Observing that the military has “developed laws and traditions of its own during its long history,” the Supreme Court in Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), held that “[b]ecause of the factors differentiating military society from civilian society ... the proper standard of review for a vagueness challenge to [articles of the Code of Military Justice] is the standard that applies to criminal statutes regulating economic affairs.” Id. at 734, 94 S.Ct. 2547. The Court cited approvingly from a pre-Civil War decision upholding the Navy’s general article which provided that “all crimes committed by persons belonging to the navy, which are not specified in the foregoing articles shall be punished according to the laws and customs in such cases at sea” for the proposition that “[n]otwithstanding the apparent indetermi-nateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by the practical men in the navy and army.” Id. at 747, 94 S.Ct. 2547 (quoting Dynes v. Hoover, 61 U.S. 65, (20 How.) 65, 82, 15 L.Ed. 838 (1857)). Similarly, the practical business people who operate regulated economic enterprises can be expected more readily to know and understand certain seemingly open-textured regulatory provisions than the ordinary person. But here the post-trial submissions have made clear there was no shared understanding among those who work in the realm of exports and their control regarding the term “specially designed,” either as a general matter or, as material here, when used in ECCN 1312A in 1988. This failure to provide a serviceable definition understandable to the practical people of the export community is chargeable against the government because it is well established that otherwise unambiguous regulatory language may be rendered too vague to support criminal liability by the particular construction promulgated pursuant to statute by the responsible executive agency. See, e.g., Trinity Broadcasting, 211 F.3d at 629 (plain meaning interpretation “might have some force but for the fact that” it was undermined by agency statements); United" }, { "docid": "17043138", "title": "", "text": "force are essentially professional military judgments.” Sixth Amendment — Notice The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation[.]” Fairness requires appropriate notice that the act would be criminal. The Due Process Clause of the Fifth Amendment also demands that a statute not be so vague or overbroad that one cannot determine its meaning. See, e.g., Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Boyett, 42 M.J. 150 (1995); United States v. Dear, 40 MJ 196 (CMA 1994). This is especially true when viewed in light of First Amendment protections. Similar charges of vagueness and over-breadth were made in Parker v. Levy, supra (implicit in Levy that Article 133, UCMJ, 10 USC § 933, was not constitutionally infirm because of no intent requirement). There, Captain Howard Levy, a physician training Special Forces aide personnel, had made a number of anti-war statements to patients and enlisted personnel while on duty. Additionally, he had urged servicemembers to refuse to fight in Vietnam. He was charged, inter alia, with conduct unbecoming an officer and conduct prejudicial to good order and discipline. The Court of Appeals held that Articles 133 and 134 as applied were unconstitutional. Levy v. Parker, 478 F.2d 772, 789-90 (3d Cir.1973). The opinion below suggested that the Articles were overly broad. Id. at 794-95. The Supreme Court recognized that, in examining a statute under “the vagueness doctrine,” there is a requirement of “more precision” when the case involves “regulation of expression.” 417 U.S. at 756, 94 S.Ct. at 2561. “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” Id. at 757, 94 S.Ct. at 2562, citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed." }, { "docid": "12125266", "title": "", "text": "denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); United States v. Wales, 31 MJ 301, 310 (CMA 1990) (Cox, J., dissenting in part and concurring in the result), and I fully concur. Naturally, any conduct charged as a violation of Article 133 or 134, Uniform Code of Military Justice, 10 USC § 933 or 934, respectively, must be such that an accused servicemember is fairly on notice of its proscription. Parker v. Levy, 417 U.S. 733, 752-54, 94 S.Ct. 2547, 2559-61, 41 L.Ed.2d 439 (1974). ' 30. Regarding “fraternization,” whether charged as a violation of Article 133 or 134,1 take it that paragraph 83 (“Fraternization”), Part IV, Manual for Courts-Martial, United States, 1984, constitutes rather explicit notice to servicemembers. I have never agreed with those who would argue that the Service Secretaries need to promulgate some special regulation in order for fraternization to become chargeable as an offense. We might recall that the Manual for Courts-Martial is an Executive Order promulgated by the Commander in Chief, an authority superior to the Service Secretaries. Persons arguing against the wisdom of outlawing fraternization in the services should address their appeals there. 31. In my view, the only thing left to debate in a given case is whether the particular conduct is prejudicial to good order and discipline and, thus, constitutes fraternization or conduct unbecoming an officer by fraternizing. I take it that even the most ardent advocates concede that sexual intercourse by a superior officer with a subordinate service-member takes it over the line of “equality,” the sine qua non of fraternization (or “sororitization” as the case may be). SULLIVAN, Chief Judge, with whom WISS, Judge, joins (concurring in the result): 32. This appeal from a conviction based on a guilty plea raises two particular questions for me. First, was appellant’s actions as charged and admitted “conduct unbecoming an officer,” in violation of Article 133, Uniform Code of Military Justice, 10 USC § 933? See Parker v. Levy, 417 U.S. 733, 752-55, 94 S.Ct. 2547, 2559-61, 41 L.Ed.2d 439 (1974). Second, if his actions were conduct unbecoming an officer," }, { "docid": "13279430", "title": "", "text": "rise to notice under a similar rule amount to the substantial clarifying precedent necessary to save a rule which is vague on its face. See, Parker v Levy, supra. JAMESON, Senior District Judge (concurring in part, dissenting in part): I am unable to agree with the majority that the rule of the Milwaukee Police Department proscribing “conduct unbecoming a member and detrimental to the service” is unconstitutionally vague. It is, of course, well settled that due process requires that a penal statute be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” A statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Moreover, where the statute’s literal scope “is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Go-guen, 415 U.S. 566, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). On the other hand, the test for vagueness is less stringent in other contexts. For example, with respect to criminal statutes regulating economic affairs, “Void for vagueness simply means that criminal responsiblity should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). In the recent case of Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 42 U.S.L.W. 4979 (June 19, 1974), the Court held that the proper standard of review for a vagueness challenge to the Uniform Code of Military Justice was that applicable to criminal statutes regulating economic affairs. Applying that standard, the Court upheld an article to the Code providing for punishment of an officer for “conduct unbecoming an officer and gentleman.” It is true," }, { "docid": "369530", "title": "", "text": "police of any violation of law they may observe. Police officers and prosecutors usually have some discretion as to whom they arrest and prosecute. However, Article 1139 leaves no similar discretion for persons in the Navy in determining what offenses to report; and it appears to subject them to an absolute, all-inclusive duty to report offenses. If this Regulation was intended to be enforced criminally, failure to perform this duty authorizes imposition of severe penalties under Article 92, UCMJ, 10 U.S.C. § 892. To impose on everyone this sweeping obligation will have inhibiting effects on freedom of association and assembly in the Navy — effects so great as to be impermissible under the First Amendment. I realize that Parker v. Levy, supra, emphasizes that the military community is unique, so that military personnel can be subjected to duties and restrictions that would be intolerable in the civilian community. See United States v. Heyward, supra at 38 (Everett, C.J., concurring). However, the power of an armed service over its members is not unlimited; and, even in the interests of military necessity, military authorities may not create a “police state” within the military society, as Article 1139 purports to do. This Court heretofore has not tolerated military orders or regulations that were overly broad. United States v. Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961); United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29 (1958); United States v. Milldebrandt, 8 U.S.C.M.A. 635, 25 C.M.R. 139 (1958). In my view, these holdings have not been vitiated by Parker v. Levy, supra. Moreover, it appears clear from oral argument and otherwise that Article 1139 often is used as a threat for its in terrorem effect, rather than as a basis for prosecution and trial. Since many instances of such use may escape all judicial scrutiny, every reason exists to apply here those Supreme Court precedents which confer very broad standing to attack legislation that, because of its excessive breadth, has a chilling effect on free speech or other First-Amendment rights. Sometimes, of course, a statute will not be invalidated, even though it is" }, { "docid": "1866351", "title": "", "text": "330 (C.A.A.F.1998). It also requires fair notice as to the standard applicable to the forbidden conduct. Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In Parker, the Supreme Court gave meaning to these concepts in the context of Article 133, UCMJ, 10 U.S.C. § 933 (2002) and Article 134. The Court held that the language of Article 134 was not so vague that service members could not understand what conduct was proscribed and, therefore, Article 134 was not facially void for vagueness. Id. at 756-57, 94 S.Ct. 2547. ‘Void for vagueness,” the Court ruled, “means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” Id. at 757, 94 S.Ct. 2547. The Court noted that interpretations by this Court, military authorities, as well as the examples in the Manual for Courts-Martial, United States (2002 ed.), [hereinafter MCM], have limited the broad reach of the literal language of Article 134. Id. at 753-54, 94 S.Ct. 2547. At the same time, the Court did not preclude future application of Article 134 to actions not specifically mentioned in the MCM. “But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage.” Id. at 754, 94 S.Ct. 2547 (emphasis added). Citing Parker v. Levy, this Court has held that as a matter of due process, a service member must have “‘fair notice’ that his conduct [is] punishable” before he can be charged under Article 134 with a service discrediting offense. Bivins, 49 M.J. at 330. This Court has found such notice in the MCM, federal law, state law, military case law, military custom and usage, and military regulations. See MCM Part IV, at para. 60.c.(4)(b)-(c) (permitting offenses under federal and state law to be charged under Article 134); id: Part IV, at paras. 60-114 (listing specified Article 134 offenses); Article 137, UCMJ, 10 U.S.C. 937 (2002) (requiring explanation to members of punitive" }, { "docid": "14688299", "title": "", "text": "court. Moreover, defendants are subject to federal criminal law under the Federal Criminal Code. For good reason, there is no general concept in our society that military offenders are ordinarily exempt from civilian criminal jurisdiction. . Article 133 of the UCMJ, for example, provides for the punishment of \"conduct unbecoming an officer and a gentleman,\" 10 U.S.C. § 933 (1982), while Article 134 proscribes, inter alia, “all disorders and neglects to the prejudice of good order and discipline in the armed forces,\" 10 U.S.C. § 934 (1982). See Parker v. Levy, 417 U.S. 733, 749-52, 94 S.Ct. 2547, 2558-60, 41 L.Ed.2d 439 (1973) (discussing differences between the UCMJ and the civilian criminal code). . As the Supreme Court observed in Parker v. Levy, Though all of the offenses described in the Code are punishable \"as a court-martial may direct,” and the accused may demand a trial by court-martial, Art. 15 of the Code also provides for the imposition of nonjudicial “disciplinary punishments” for minor offenses without the intervention of a court-martial. 10 U.S.C. § 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law. 417 U.S. at 750, 94 S.Ct. at 2559 (footnotes omitted). . Section 3231 reads:" }, { "docid": "369527", "title": "", "text": "Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787 (1985). Most American legislatures and courts have shared this reluctance. Thus, crimes like misprision of a felony or being an accessory after the fact have generally been interpreted to require more than a failure to act. Moreover, in drafting its Model Penal Code, the American Law Institute rejected very modest proposals to create affirmative duties enforced by punishment. Some widespread attitudes in our society may underlie the unwillingness to punish those who refuse to act — even when such action would help law enforcement or preserve the public safety. Our vernacular reflects these attitudes in the use of terms like “stool pigeon,” “rat,” “snitch” and “tattletale” — terms which make clear that those who report others’ misdeeds often are unpopular. While some institutions maintain honor codes, which may require the reporting of observed infractions, a substantial portion of our citizenry are unwilling to “get involved” by preventing or reporting crimes. I do not applaud or condone the unwillingness many have to be their brother’s keeper — although, on the other hand, I certainly would not wish to live in a country like Nazi Germany, where children were motivated to report any seemingly disloyal thought or action of family members. My concern is that, because failure to act usually is not punishable, someone who fails to act may be unaware of the possible consequences of his omission. Nonetheless, I was sure that Heyward, an Air Force noncommissioned officer, was on notice of his duty to report drug abuse by subordinates. Contrariwise, I conclude that Article 1139’s broad language did not adequately define the duty to report offenses which it placed on Reed, so it did not provide him the constitutionally requisite notice. Admittedly, Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), permits military authorities to issue directives that, if issued by civil authorities, might be invalidated as vague or over-broad. However, although Captain Levy must have been well aware that his conduct was intended to be punishable under Articles 133 and" }, { "docid": "14688298", "title": "", "text": "was concerned, to interfere as little as might be with the authority of the States on that subject over all territory situated within their exterior boundaries, and which hence would be subject to exclusive state jurisdiction but for the existence of a United States reservation. Press Publishing 219 U.S. at 9-10, 31 S.Ct. at 214. . We note that in this case a person convicted of drunken driving under Maine law, Me.Rev. Stat.Ann. tit. 29, § 1312-B, will automatically have his driver’s license suspended for a minimum period of 90 days. A military court, however, is not empowered to impose this penalty on a military defendant. Cf. United States v. Lee, 786 F.2d 951, 954 (9th Cir.1986) (quoting a district court judge as observing that ”[t]he Air Force ‘in house’ handling of its own military offenders [in traffic violation cases] often provide^] for noncriminal adjudication\"). . For example, if defendants had been arrested for drunken driving while on Maine state roads, there is no question that they could be prosecuted under state law in state court. Moreover, defendants are subject to federal criminal law under the Federal Criminal Code. For good reason, there is no general concept in our society that military offenders are ordinarily exempt from civilian criminal jurisdiction. . Article 133 of the UCMJ, for example, provides for the punishment of \"conduct unbecoming an officer and a gentleman,\" 10 U.S.C. § 933 (1982), while Article 134 proscribes, inter alia, “all disorders and neglects to the prejudice of good order and discipline in the armed forces,\" 10 U.S.C. § 934 (1982). See Parker v. Levy, 417 U.S. 733, 749-52, 94 S.Ct. 2547, 2558-60, 41 L.Ed.2d 439 (1973) (discussing differences between the UCMJ and the civilian criminal code). . As the Supreme Court observed in Parker v. Levy, Though all of the offenses described in the Code are punishable \"as a court-martial may direct,” and the accused may demand a trial by court-martial, Art. 15 of the Code also provides for the imposition of nonjudicial “disciplinary punishments” for minor offenses without the intervention of a court-martial. 10 U.S.C. § 815." }, { "docid": "1866388", "title": "", "text": "other people knew about this in this community, that they would look down upon an Air Force member leaving their child unaccompanied without a baby-sitter, any supervision, or anybody checking on that child for that lengthy period of time? ACC: Yes, ma’am. CRAWFORD, Chief Judge (concurring in the result): While I agree with the result reached by the majority, I disagree with their rationale. In my view, it is inherently illogical to separate questions of notice and service-discrediting conduct into two distinct inquiries because each question is intertwined with and dependent upon the other. Clause 2 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2002), states that “all conduct of a nature to bring discredit upon the armed forces,” though not specifically criminalized by another UCMJ Article, “shall be taken cognizance of by a ... court-martial ... and shall be punished at the discretion of that court.” Thus, in contrast to most criminal statutes that speak in terms of prohibited acts, clause 2 of Article 134 speaks in general terms of acts which create a prohibited effect. Nonetheless, Article 134 is not void for vagueness under the Due Process Clause of the Fifth Amendment. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (holding judicial constructions of Article 134 have narrowed the reach of its broad language and supplied examples of the conduct it covers). Thus, the question in this case is whether Appellant was fairly on notice that her conduct created the prohibited effect, i.e. was service-discrediting within the meaning of Article 134. If she was, then she could be prosecuted under that Article. In her brief, Appellant argues in the alternative: First, that she was not on notice her conduct was subject to prosecution under Article 134, and second, that her conduct was not service-discrediting. The majority accepts these arguments as distinct, and addresses them individually. As to the lack-of-notice argument, the majority recognizes that “child neglect is not specifically listed in the [Manual for Courts-Martial, United States (2002 ed.) ] as an Article 134 offense,” and that it" }, { "docid": "369529", "title": "", "text": "134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933 and 934, respectively, appellant was not adequately advised by Article 1139 that his failure to report drug usage by others was intended to be criminally punishable. Because generally no legal duty exists to report “to proper authority” the crimes of others, the vague language of this regulation was insufficient to meet due-process requirements. Cf. United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). Next, I am convinced that sweeping requirements for servicemembers to report the crimes of others infringe on First-Amendment rights. The drafters of the Bill of Rights contemplated that Americans could speak and associate freely. However, if each person in the community is subject to punishment for not reporting any offense he may observe someone else commit, free speech will be chilled and the development of close personal relationships will be stifled. Even law-abiding citizens may not wish to associate with others who are under an obligation to inform the police of any violation of law they may observe. Police officers and prosecutors usually have some discretion as to whom they arrest and prosecute. However, Article 1139 leaves no similar discretion for persons in the Navy in determining what offenses to report; and it appears to subject them to an absolute, all-inclusive duty to report offenses. If this Regulation was intended to be enforced criminally, failure to perform this duty authorizes imposition of severe penalties under Article 92, UCMJ, 10 U.S.C. § 892. To impose on everyone this sweeping obligation will have inhibiting effects on freedom of association and assembly in the Navy — effects so great as to be impermissible under the First Amendment. I realize that Parker v. Levy, supra, emphasizes that the military community is unique, so that military personnel can be subjected to duties and restrictions that would be intolerable in the civilian community. See United States v. Heyward, supra at 38 (Everett, C.J., concurring). However, the power of an armed service over its members is not unlimited; and, even in" }, { "docid": "1190975", "title": "", "text": "Military Appeals and by other military authorities ... has narrowed the very broad reach of the literal language of [Articles 133 and 134], and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles’ language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1957). And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. 417 U.S. at 754, 94 S.Ct. at 2560-61, 41 L.Ed.2d at 456-57. The Court then concluded that, under all the circumstance, Dr. Levy had “fair notice from the language of each article that the particular conduct which he engaged in was punishable.” 417 U.S. at 755, 94 S.Ct. at 2561, 41 L.Ed.2d at 457. Although we interpret Parker v. Levy, supra, to permit a trial by court-martial predicated on violation of a military custom, we do not believe it means that the Government is free to prosecute without proof of that custom. Indeed, to allow a servicemember to be convicted on the basis of a custom without requiring that its existence and nature be established at trial would deprive him of the appellate rights granted by the Uniform Code of Military Justice. How could a Court of Military Review or this Court be sure that the conduct established by the evidence really violated the custom if the record does not show what the custom is? A custom is not itself a statute or a regulation having the force of law. Indeed, the Manual for Courts-Martial distinguishes between statutes and regulations on the one hand and customs on the other. See para." }, { "docid": "1101502", "title": "", "text": "is that both accused were charged with violations of Article 134, to wit: fraternization. Art. 134, Uniform Code of Military Justice, 10 USC § 934. In both cases, an officer in the United States Air Force had an extra-marital, heterosexual affair with an enlisted woman serving either with him, or under his supervision or command. In this posture, the cases get all befouled with unnecessary legal questions, such as: Does this type of affair violate a “custom” of the Air Force? Does the affair constitute one crime, or does each episode constitute a separate and distinct offense? How does the Government prove its case? Can a judge take judicial notice of the “custom,” or must a witness come forth? I am amazed by the fact that lawyers and judges quibble over whether a heterosexual, extra-marital affair between a commissioned officer and an enlisted person who serves in that officer’s command constitutes misconduct which is either: (a) “prejudicial to good order and discipline” (Art. 134); or (b) “conduct unbecoming an officer and a gentleman” (Art. 133, UCMJ, 10 USC § 933). These eases are very similar to running over a skunk while driving your car. You might not ever see the beast, but you certainly can smell it. I only wish that I were as eloquent as Judge Nott, who is quoted with authority in Justice Blackmun’s concurring opinion in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), as follows: In military life there is a higher code termed honor, which holds its society to stricter accountability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code. Id. 417 U.S. at 765, 94 S.Ct. at 2566, citing Fletcher v. United States, 26 Ct.Cl. 541, 562-63 (1891). Justice Blackmun went on to say: The law should, in appropriate circumstances, be flexible enough to recognize the moral dimension of man and his instincts concerning that which is honorable, decent, and right. 417 U.S. at 765, 94 S.Ct. at 2566 (footnote omitted). Because the conduct as alleged here" }, { "docid": "1190972", "title": "", "text": "of command.” A senior airman who had been in Egypt and had observed Major Appel with Airman Rast believed that the couple’s conduct had not been correct because [g]ood order and discipline, just from everything I’ve been taught since I’ve been in the military, cannot exist if you have fraternization between officers and enlisted people in the same chain of command, or in any occasion, really. I know it caused a lot of hard feelings with other people from the services squadron. They were kind of grumbling about it. At the end of the Government’s case, the military judge took judicial notice of AFR 30-1. II A Appellant was convicted of violating an Air Force custom that prohibits fraternization between officers and enlisted persons. Prosecutions based on custom are today unknown in the Federal District Courts and, if they even exist in State courts, are relatively infrequent there. Perhaps the closest parallel today would be to prosecutions in tribal courts. Cf. Duro v. Reina, 495 U.S. -, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). The Supreme Court, however, “has long recognized that the military is, by necessity, a specialized society separate from civilian society” and “that the military has, again by necessity, developed laws and traditions of its own during its long history.” See Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439, 450-51 (1974). Moreover, in Parker v. Levy, where Dr. Levy had attacked his convictions under Articles 133 and 134 of the Uniform Code because of the claimed vagueness of these punitive articles, the Supreme Court pointed out: Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts 133 and 134. In Dynes v. Hoover, 20 How 65, 15 L.Ed. 838 (1857), this Court upheld the Navy’s general article, which provided that “[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” The" }, { "docid": "8237555", "title": "", "text": "“stool pigeon,” “rat,” “snitch” and “tattletale” — terms which make clear that those who report others’ misdeeds often are unpopular. While some institutions maintain honor codes, which may require the reporting of observed infractions, a substantial portion of our citizenry are unwilling to “get involved” by preventing or reporting crimes. I do not applaud or condone the unwillingness many have to be their brother’s keeper — although, on the other hand, I certainly would not wish to live in a country like Nazi Germany, where children were motivated to report any seemingly disloyal thought or action of family members. My concern is that, because failure to act usually is not punishable, someone who fails to act may be unaware of the possible consequences of his omission. In my view, it does not suffice for the Government to prove that the Air Force intended that appellant, as a noncommissioned officer, have a duty to report drug use by others. Also it must be proved, in light of the societal background concerning such inaction, that appellant knew — or should have known — that he was subject to this duty. Cf. United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, — U.S. -, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). In short, if a servicemember might not be aware that he was required to perform a particular duty, he cannot properly be convicted of dereliction under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, for failure to perform the duty. Fortunately, as the principal opinion ob serves, Air Force directives had made Hey-ward well aware of his duty as a noncommissioned officer to report drug abuse by his subordinates. Because he had received clear guidance in this regard, he cannot complain now that he lacked notice. Is every noncommissioned officer under a duty to report to higher authority all information about any crime by any servicemember of which he has knowledge? Can every servicemember be required to report every observable incident of drug use? These questions are not presented in this case. However, when and if they arise" }, { "docid": "1866350", "title": "", "text": "previous occasions. She further testified that she locked the door and that no one other than the father had a key. The father, in fact, did not show up to care for SK during Appellant’s absence. SK suffered no apparent harm during Appellant’s absence. Appellant was charged with “child neglect” as a “service-discrediting” offense under clause 2 of Article 134. Appellant challenges her conviction on three bases. First, she argues that she did not have notice that her conduct was subject to criminal sanction under Article 134 and that the specific charge and military judge’s subsequent guidance, did not provide proper notice as to the specific elements of the offense. Second, she argues that her con duct falls outside the definition of child neglect because SK was not harmed by being left alone. Third, she argues that her actions were not service discrediting. We address each argument in turn. Discussion A. Fair Notice Due process requires “fair notice” that an act is forbidden and subject to criminal sanction. United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F.1998). It also requires fair notice as to the standard applicable to the forbidden conduct. Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In Parker, the Supreme Court gave meaning to these concepts in the context of Article 133, UCMJ, 10 U.S.C. § 933 (2002) and Article 134. The Court held that the language of Article 134 was not so vague that service members could not understand what conduct was proscribed and, therefore, Article 134 was not facially void for vagueness. Id. at 756-57, 94 S.Ct. 2547. ‘Void for vagueness,” the Court ruled, “means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” Id. at 757, 94 S.Ct. 2547. The Court noted that interpretations by this Court, military authorities, as well as the examples in the Manual for Courts-Martial, United States (2002 ed.), [hereinafter MCM], have limited the broad reach of the literal language of Article 134. Id. at 753-54, 94 S.Ct. 2547. At the same time, the Court" }, { "docid": "1190973", "title": "", "text": "Supreme Court, however, “has long recognized that the military is, by necessity, a specialized society separate from civilian society” and “that the military has, again by necessity, developed laws and traditions of its own during its long history.” See Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439, 450-51 (1974). Moreover, in Parker v. Levy, where Dr. Levy had attacked his convictions under Articles 133 and 134 of the Uniform Code because of the claimed vagueness of these punitive articles, the Supreme Court pointed out: Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts 133 and 134. In Dynes v. Hoover, 20 How 65, 15 L.Ed. 838 (1857), this Court upheld the Navy’s general article, which provided that “[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” The Court reasoned: “[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial, have cognizance.” 417 U.S. at 746-47, 94 S.Ct. at 2557, 41 L.Ed.2d at 452-53. The Supreme Court also noted that the interpretation of Articles 133 and 134 by the Court of" }, { "docid": "369528", "title": "", "text": "to be their brother’s keeper — although, on the other hand, I certainly would not wish to live in a country like Nazi Germany, where children were motivated to report any seemingly disloyal thought or action of family members. My concern is that, because failure to act usually is not punishable, someone who fails to act may be unaware of the possible consequences of his omission. Nonetheless, I was sure that Heyward, an Air Force noncommissioned officer, was on notice of his duty to report drug abuse by subordinates. Contrariwise, I conclude that Article 1139’s broad language did not adequately define the duty to report offenses which it placed on Reed, so it did not provide him the constitutionally requisite notice. Admittedly, Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), permits military authorities to issue directives that, if issued by civil authorities, might be invalidated as vague or over-broad. However, although Captain Levy must have been well aware that his conduct was intended to be punishable under Articles 133 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933 and 934, respectively, appellant was not adequately advised by Article 1139 that his failure to report drug usage by others was intended to be criminally punishable. Because generally no legal duty exists to report “to proper authority” the crimes of others, the vague language of this regulation was insufficient to meet due-process requirements. Cf. United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). Next, I am convinced that sweeping requirements for servicemembers to report the crimes of others infringe on First-Amendment rights. The drafters of the Bill of Rights contemplated that Americans could speak and associate freely. However, if each person in the community is subject to punishment for not reporting any offense he may observe someone else commit, free speech will be chilled and the development of close personal relationships will be stifled. Even law-abiding citizens may not wish to associate with others who are under an obligation to inform the" }, { "docid": "14263393", "title": "", "text": "notice to the complainant that his conduct is proscribed. Id. at 498-99, 102 S.Ct. 1186 (citation omitted). I will take up these individual cautionary considerations in the course of separately discussing the alternative grounds of fair notice and fair enforcement. 1. Fair notice The law of vagueness has recognized that greater flexibility will be afforded the government in the area of economic regulation than when, for example, rights of free expression are at issue. As a doctrinal matter, this willingness to give the government greater leeway in framing economic regulatory language is in recognition that generally economic regulation does not implicate “perhaps the most important factor affecting the clarity that the Constitution demands of a law[:] whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 499, 102 S.Ct. 1186. As a practical matter, the greater flexibility accorded economic regulation appears to turn on a recognition that those involved in regulated economic activity will approach the regulatory regime with some developed sense of the relevant definitions more nuanced than that of the person of ordinary intelligence. Observing that the military has “developed laws and traditions of its own during its long history,” the Supreme Court in Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), held that “[b]ecause of the factors differentiating military society from civilian society ... the proper standard of review for a vagueness challenge to [articles of the Code of Military Justice] is the standard that applies to criminal statutes regulating economic affairs.” Id. at 734, 94 S.Ct. 2547. The Court cited approvingly from a pre-Civil War decision upholding the Navy’s general article which provided that “all crimes committed by persons belonging to the navy, which are not specified in the foregoing articles shall be punished according to the laws and customs in such cases at sea” for the proposition that “[n]otwithstanding the apparent indetermi-nateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by the practical men in the navy and army.”" } ]

[ { "docid": "21602507", "title": "", "text": "motion. Id. at 59. In contrast, we explained that “[n]either th[is] opportunity], nor the sharply honed adversarial exchange involved in a Rule 12(b)(6) motion and opposition, are present when dismissal is sua sponte.” Id. Thus, taken in context, the statement on which Henthorn relies merely described the adversary nature of a 12(b)(6) motion as contrasted with a sua sponte dismissal. It did not fashion a rule requiring federal courts to look beyond the pleadings in ruling on 12(b)(6) motions. Other than this dictum from Brandon, we have found no case from this or any other circuit suggesting that a trial court must consider contradictory factual allegations made in a brief opposing a motion to dismiss when ruling on a 12(b)(6) motion. In fact, the sparse case law addressing the effect of factual allegations in briefs or memo-randa of law suggests that such matters may never be considered when deciding a 12(b)(6) motion, see, e.g., Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988), and most certainly may not be considered when the facts they contain contradict those alleged in \"the complaint. See Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 915 (7th Cir.1985) (emphasis added) (court of appeals reviewing dismissal under 12(b)(6) could consider facts not contained in complaint, “provided it was not inconsistent with the allegations of the complaint ”). Cf. Goldman v. Summerfield, 214 F.2d 858, 859 (D.C.Cir.1954) (“[Statements of fact in [legal] memoranda cannot ordinarily be given the dignity of a pleading or deposition, even though no effort is made to controvert them.”). The purpose of a motion to dismiss is to assess the validity of the pleadings. See Fed.R.Civ.P. 12(b)(6). To require that trial courts accept as true factual allegations made in legal memoranda, which form no part of the official record, when those allegations directly contradict the facts set forth in the complaint would be to stretch Rule 12(b)(6) far beyond even the generous pleading standards that we apply to pro se plaintiffs. Thus, in this case, we will look only to the allegations made in Henthorn’s actual" } ]

[ { "docid": "19190747", "title": "", "text": "of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). While the court must construe the Complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). III. DISCUSSION A. Motion to Dismiss for Lack of Personal Jurisdiction AGM & M predicates personal jurisdiction over Waters, Sr. based on the District of Columbia long-arm statute that permits the exercise of personal jurisdiction over a person who has transacted business in the District of Columbia, provided that the claim for relief arises from the same conduct: (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s (1) transacting any business in the District of Columbia[.] (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated" }, { "docid": "44122", "title": "", "text": "any discovery in abeyance until the plaintiff has had an opportunity to amend its complaint, and defendants have had an opportunity to file a second motion to dismiss, if warranted. This allows discovery to proceed on all surviving matters in a uniform manner, in the interests of judicial economy. This would also allow the Court — if no federal claims or diverse parties remain — to transfer the case back to Superior Court. II. LEGAL STANDARD The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). While the court must construe the complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs or memoranda" }, { "docid": "18253792", "title": "", "text": "enough heft to ‘sho[w] that the pleader is entitled to relief ”) (quoting Fed. R.Civ.P. 8(a)(2)). In evaluating, a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O. C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). B. Summary Judgment A party is entitled to summary judgment upon a showing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as" }, { "docid": "12187105", "title": "", "text": "Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C.2000). B. Rule 12(b)(6) The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S.-, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. -, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). While the court must construe the Complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O. C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). C. Rule 56 A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under" }, { "docid": "9404258", "title": "", "text": "1964-65; see also Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Instead, the complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level, on the assump tion that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based" }, { "docid": "12716884", "title": "", "text": "to two different legal theories. First, Defendants contend that they are entitled to judgment as a matter of law based upon the pleadings under Federal Rule of Civil Procedure 12(c). Second, Defendants argue that should the Court review matters outside of the pleadings adduced during the discovery process of this case in making its determination, they are entitled to summary judgment under Federal Rule of Civil Procedure 56(c). In order to lend clarity to Defendants’ divergent theories, the Court shall review the relevant legal standards for each form of motion. • A. Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) Rule 12(c) of the Federal Rules of Civil Procedure provides that “[ajfter the pleadings are closed but within such time frame as not to delay the trial, any party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The standard of review for motions for judgment on the pleadings under Rule 12(c) is essentially the same as that for motions to dismiss under Rule 12(b)(6). Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987); Transworld Products Co. v. Canteen Corp., 908 F.Supp. 1, 2 (D.D.C.1995). On either motion, the Court may not rely on facts outside of the pleadings and must construe the complaint in the light most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir. 1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the" }, { "docid": "14328029", "title": "", "text": "entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am,. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). While the court must construe the Complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch, 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). III. DISCUSSION A Count I: Breach of Fiduciary Duty Claim Against Cafesjian and Waters, Jr. Count I of the Second Amended Complaint alleges that Cafesjian and Waters, Jr. breached their fiduciary duties through the “deliberate execution and filing” of the MOA, which was “ultra vires.” Second Am. Compl. ¶ 44. AGM & M further alleges that Cafesjian and Waters, Jr. “were aware that the filing of the Lis Pendens would continue to result in the delay and obstruction of the museum project, and would cause substantial damages to AGM & M.” Id. ¶ 46. As a result, AGM & M “incurred substantial damages, including ... fees and" }, { "docid": "10040566", "title": "", "text": "the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[] if such inferences are not supported by the facts set out in the complaint.” Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). Ill: DISCUSSION A. Defendant Long Beach Mortgage Loan Trust 2001-Hs Motion to Dismiss for Lack of Personal Jurisdiction This ease presents a question of first impression in this jurisdiction. The question is this: May this Court exercise personal jurisdiction over a non-resident defendant trust company that has no contacts with the District of Columbia other than taking assignment of a mortgage note secured by real property in this District, where the note and rights to" }, { "docid": "7163443", "title": "", "text": "that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O. C. v. St. Francis Xavier Parochial Sch, 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). If, on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(b). B. Summary Judgment A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, Defendant, as the moving party, “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine" }, { "docid": "21353343", "title": "", "text": "court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). Ill: DISCUSSION The ten pending motions to dismiss Plaintiffs’ Amended Complaint contain largely overlapping arguments pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants collectively argue that the Court lacks subject matter jurisdiction over Counts 1 through 3 of Plaintiffs’ Amended Complaint because all of those claims are within the exclusive jurisdiction of the District of Columbia’s Public Employee Relations Board (“PERB”) and that, in any event, those Counts fail to state a claim for relief as to any Defendants other than the District and the Labor Union Defendants. Defendants further argue that Plaintiffs’ due process Count and generalized conspiracy allegations fail to state claims for relief against any Defendants. In order to avoid repetition the Court does not address each Defendant’s motion to dismiss individually, but rather addresses Defendants’ overlapping arguments below by considering in turn each of the Counts included in Plaintiffs’ Amended Complaint. Before turning to Defendants’ overlapping arguments, however, the Court briefly addresses Plaintiffs’ failure to serve Defendants Smith and FOP, and then addresses Con-centra, AFGE, and Sedgwick’s arguments for dismissal due to improper service of process. A. Plaintiffs Have Failed to Serve Defendants Smith and FOP On December 13, 2007, the Court issued an Order pursuant to Federal Rule of Civil Procedure 4(m), noting that more than ten months had passed" }, { "docid": "12716885", "title": "", "text": "1245, 1254 (D.C.Cir.1987); Transworld Products Co. v. Canteen Corp., 908 F.Supp. 1, 2 (D.D.C.1995). On either motion, the Court may not rely on facts outside of the pleadings and must construe the complaint in the light most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir. 1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). Accordingly, under Rule 12(c) motion, the Court assumes the veracity of all factual allegations set forth in Plaintiffs Complaint. See Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). Granting judgment on the pleadings pursuant to Rule 12(c) or a motion to dismiss for failure to state a claim under Rule 12(b)(6) is warranted only if it appears beyond doubt, based on the allegations contained in the complaint, that “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Alicke v. MCI Communications Corp., 111 F.3d 909, 912 (D.C.Cir.1997). “The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.” Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (citation omitted). However, while the Court must construe the complaint in the plaintiffs favor," }, { "docid": "21353342", "title": "", "text": "fact).” Bell Atl., 127 S.Ct. at 1965 (citations omitted). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’cns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). Ill: DISCUSSION The ten pending motions to dismiss Plaintiffs’ Amended Complaint contain largely overlapping arguments pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants collectively argue that the Court lacks subject matter jurisdiction over Counts 1 through 3 of Plaintiffs’ Amended" }, { "docid": "18253793", "title": "", "text": "FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O. C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). B. Summary Judgment A party is entitled to summary judgment upon a showing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Too v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at" }, { "docid": "7163442", "title": "", "text": "dismiss converts those motions into motions for summary judgment. See generally Pl.’s Opp’n. Plaintiff further argues that she has sufficiently alleged the various claims included in her Amended Complaint. Id. On November 28, 2006, Defendants FMVILA and FMVLLC/Duncan filed each filed an Opposition to Plaintiffs Motion for Partial Summary Judgment, as well as a Reply in support of their own motion to dismiss. Plaintiff filed her Reply in support of her Motion for Partial Summary Judgment on December 1, 2006. II. LEGAL STANDARD A. Rule 12(b)(6) In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O. C. v. St. Francis Xavier Parochial Sch, 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d" }, { "docid": "11359963", "title": "", "text": "for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), a court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While a court must construe the Complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintifff ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached, to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994). B. Summary Judgment A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, the moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers" }, { "docid": "7757017", "title": "", "text": "of the pleadings, must construe the complaint in a light most favorable to the plaintiff, and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. See Jung, 339 F.Supp.2d at 36. See also In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). III. DISCUSSION A. Defendants’ Rule 12(c) Motion Is Not Premature Parties are entitled to pretrial judgment on the pleadings, “only if, after the close of the pleadings, no material fact remains in dispute, and the moving party is entitled to judgment as a matter of law.” Transworld Prods. Co. v. Canteen Corp., 908 F.Supp. 1, 1 (D.D.C.1995) (citing Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.1992)). Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are at issue when a complaint and an answer have been filed. See Fed.R.Civ.P. 7(a) (“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person" }, { "docid": "9404259", "title": "", "text": "drawn by the plaintiff! ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). Ill: DISCUSSION Before turning to the bulk of Defendants’ arguments for dismissal of Plaintiffs claims, the Court briefly addresses Defendants’ assertion that Plaintiff cannot sue Defendants Johnson and Anthony in their individual capacities under the D.C. WPA. In her Opposition, Plaintiff denies that the First Amended Complaint includes such a claim, but the First Amended Complaint itself is far from clear on this point. See Pl.’s Opp’n at 14 n. 7. It appears that Plaintiff did not intend to bring a WPA claim against Defendants Johnson and Anthony individually and, in any event, she concedes that one would lack merit in light of Judge John D. Bates’ conclusion in Winder v. Erste, No. Civ. A. 03-2623, 2005 WL 736639 (D.D.C. Mar. 31, 2005), that the WPA does not create a private right of action against individual supervisors. See also Tabb v. District of Columbia, 477 F.Supp.2d 185, 189 (D.D.C.2007) (finding Winder v. Erste persuasive and agreeing with it). Therefore, the Court shall dismiss any potential" }, { "docid": "5632709", "title": "", "text": "allegations.” In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[] if such inferences are not supported by the facts set out in the complaint.” Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). III. DISCUSSION ING argues that Plaintiffs’ Complaint should be dismissed for three separate and independent reasons: (1) pursuant to Federal Rule of Civil Procedure 12(b)(1), ING argues that Plaintiffs fail to plead a recognized injury and therefore lack standing, see ING Mot. to Dismiss at 6-11; (2) pursuant to Federal Rule of Civil Procedure 12(b)(6), ING argues that Plaintiffs fail to state a claim upon which relief can be granted, see id. at 11-13; and (3) ING argues that this case is moot because ING has already taken steps to eliminate any risk that Plaintiffs may suffer injury as a result of" }, { "docid": "5632708", "title": "", "text": "the motion papers may be considered without converting the motion to one for summary judgment”) (citing Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 515 (6th Cir.1999)). At the stage in litigation when dismissal is sought, the plaintiffs complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiffs burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C.2000). B. Federal Rule of Civil Procedure 12(b)(6) “In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.” In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff[] if such inferences are not supported by the facts set out in the complaint.” Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6" }, { "docid": "44123", "title": "", "text": "the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). While the court must construe the complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs or memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). When a court dismisses a claim, typically it does so without prejudice to refile or amend the complaint. O’Donnell v. Barry, 148 F.3d 1126, 1137 n. 3 (D.C.Cir.1998) (“ ‘[A] dismissal under Rule 12(b)(6) generally is not final or on the merits and the court normally will give plaintiff leave to file an amended complaint.’ ”) (quoting Wright, Miller & Kane, 5A Federal Practice & Procedure § 1357 at 360-61 (1990)). A “complaint that omits certain essential facts and thus fails to state a claim warrants dismissal pursuant to Rule 12(b)(6) but not dismissal with prejudice.” Belizan v. Hershon, 434 F.3d 579, 583 (D.C.Cir.2006). This gives the complainant another" } ]

[ { "docid": "22411442", "title": "", "text": "“to look only to the facts known to the administrator”); Taft, 9 F.3d at 1471-72 (fearing that examination beyond the administrative record would too easily lead to findings of abuse of discretion, defeating the goal of ERISA to resolve disputes expeditiously); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 48 n. 8 (3d Cir.1993); Sandoval v. Aetna Life & Casualty Ins. Co., 967 F.2d 377, 380-81 (10th Cir.1992); Oldenburger v. Central States Pension Fund, 934 F.2d 171, 174 (8th Cir.1991); Perry v. Simplicity Eng’g, 900 F.2d 963, 967 (6th Cir.1990) (noting that both de novo and arbitrary and capricious standards of review do “not mandate or permit the consideration of evidence not presented to the administrator”). Only the Fifth Circuit has allowed a broader scope of review. See Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638, 642 (5th Cir.1992) (allowing district courts to look beyond the administrative record to review the administrator’s plan interpretation, but not to review “the historical facts underlying a claim”). We follow the majority of our sister circuits in concluding that a district court’s review under the arbitrary and capricious standard is limited to the administrative record. Because district courts are required to limit their review to the administrative record, it follows that, if upon review a district court concludes that the Trustees’ decision was arbitrary and capricious, it must remand to the Trustees with instructions to consider additional evidence unless no new evidence could produce a reasonable conclusion permitting denial of the claim or remand would otherwise be a “useless formality.” See Wardle v. Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d 820, 828 (7th Cir.1980) (citing Ruth v. Lewis, 166 F.Supp. 346, 349 (D.D.C.1958)), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). This rule is consistent with the fact that nothing “in the legislative history suggests that Congress intended that federal district courts would function as substitute plan administrators” and with the ERISA “goal of prompt resolution of claims by the fiduciary.” Perry, 900 F.2d at 966. While the district court did not rely on evidence outside" } ]

[ { "docid": "7936562", "title": "", "text": "299 (2008), changed the legal landscape for discovery in ERISA cases involving dual role conflicts of interest, and the district court failed to apply this new approach. We review de novo whether the district court employed the correct legal standard for discovery. See Neiberger v. Fed Ex Ground Package Sys., Inc., 566 F.3d 1184, 1189 (10th Cir. 2009) (reiterating the general proposition that we review de novo whether the district court applied the proper legal standard at issue). Although we disagree with Ms. Murphy’s proposition that Glenn changed our standard for discovery, we believe the lack of clarity in our case law on this issue and the Glenn decision suggest we should clarify the appropriate standard for discovery related to a dual role conflict of interest. A. Supplementation of the Administrative Record Generally In an ERISA case where, as here, the plan “ ‘gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,’ ” we review the administrator’s decision for an abuse of discretion. Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir.2009) (quoting Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1002-03 (10th Cir. 2004), abrogated on other grounds by Glenn, 128 S.Ct. at 2351); see also Weber, 541 F.3d at 1010 n. 10 (describing terms “arbitrary and capricious” and “abuse of discretion” as interchangeable in this context). Our cases, however, have failed to provide clear guidance to the district court regarding the appropriate standard for resolving discovery requests in these types of cases. See Kohut v. Hartford Life and Accident Ins. Co., 710 F.Supp.2d. 1139, 1152, 2008 WL 5246163, *12 (D.Colo. Dec.16, 2008) (describing our case law as exhibiting “judicial schizophrenia”). As a starting point, we have frequently, consistently, and unequivocally reiterated that, “ ‘in reviewing a plan administrator’s decision under the arbitrary and capricious standard, the federal courts are limited to the administrative record.’ ” Weber, 541 F.3d at 1011 (quoting Fought, 379 F.3d at 1003); see also, e.g., Holcomb, 578 F.3d at 1192 (10th Cir.2009) (citing Fought, 379" }, { "docid": "23679203", "title": "", "text": "not per se constitute “good cause” to consider evidence outside of the administrative record upon a de novo review of factual issues bearing on an administrator’s denial of ERISA benefits. As noted above, in DeFelice, we based our holding not only on a demonstrated conflict of interest, but also upon the procedural problems with the plan administrator’s appeals process. 112 F.3d at 66. We found significant that the appeals committee had no established criteria for determining an appeal and had a practice of destroying records within minutes after hearing an appeal. See id. Moreover, a per se rule would effectively eliminate the “good cause” requirement and the discretion afforded to district courts in deciding whether to admit additional evidence, because claims reviewers and payors are almost always either the same entity or financially connected in some other way. Cf. DeFelice, 112 F.3d at 66 (setting forth requirement of “good cause”); Critchlow v. First UNUM Life Ins. Co. of America, 340 F.3d 130, 133 n. 2 (2d Cir.2003) (noting that the decision to “consider information outside the administrative record is a discretionary one even where there is ‘good cause’ ”), withdrawn and vacated on reconsideration on other grounds, 378 F.3d 246 (2d Cir.2004). Additionally, a per se rule is inconsistent with the congressional purposes and goals' of ERISA. The primary goals of ERISA are “to promote the interests of employees and their beneficiaries in employee benefit plans,” “to protect contractually defined benefits,” Firestone, 489 U.S. at 113, 109 S.Ct. 948 (internal quotation marks omitted), and “to maintain the premium costs of [an ERISA] system at a reasonable level,” 29 U.S.C. § 1001b(c)(5). The Supreme Court has emphasized both “the public interest in encouraging the formation of employee benefit plans” and “the need for prompt and fair claims settlement procedures.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). As noted above, because claims reviewers and payors are tiften interconnected, a per se rule would allow additional evidence to be presented at the district court level in almost every circumstance on the basis of" }, { "docid": "17953", "title": "", "text": "Even though the decision to award attorney’s fees is committed to the discretion of a district court, we require that “we be informed by the record of why the district court acted as it did.” Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 138-39 (2d Cir.2000) (internal quotation omitted). Quite understandably, the District Court did not address Krizek’s entitlement to attorney’s fees because it ruled against her on the merits. If, on remand, the District Court grants judgment in favor of Krizek, it also should make specific findings with respect to whether attorney’s fees are jus tified in light of the factors enunciated in Chambless. See Connors, 272 F.3d at 137 (vacating district court’s decision regarding benefit eligibility and remanding for findings on attorney’s fees). Conolusion After considering all the arguments raised by the parties, we vacate and remand the judgment of the District Court. . It is unnecessary for the purposes of today’s opinion to recite exhaustively Krizek’s medical evaluations. .District courts have emphasized a plaintiff's burden to allege facts, with sufficient specificity, that would support the existence of \"good cause\" permitting the admission of additional evidence beyond the administrative record. See, e.g., Hotaling v. Teachers Ins. Annuity Ass’n of Am., 62 F.Supp.2d 731, 738 (N.D.N.Y.1999) (finding no conflict of interest where plaintiff \"fail[ed] to allege, with any specificity, whether 'good cause’ exists sufficient to permit the introduction of additional evidence” and commenting that a court should not exercise its discretion to expand the record “in cases where a party fails to demonstrate, beyond mere speculation or conjecture, that the 'administrative record is inadequate' \" (citing DeFelice, 112 F.3d at 65)); see also Sheehan v. Metropolitan Life Ins. Co., 2002 WL 1424592, at * 4 (S.D.N.Y. June 28, 2002) (noting that a plaintiff must demonstrate a conflict of interest or other good cause to present evidence outside the administrative record and therefore concluding that a proper subject for discovery was whether the plan administrator was conflicted when it terminated the plaintiff’s benefits). . We note, however, that it is somewhat understandable why Krizek was under the" }, { "docid": "23679201", "title": "", "text": "in order to ensure a comprehensive and impartial review of the case.” 112 F.3d at 66; see also id. at 67 (“A demonstrated conflict of interest in the administrative reviewing body is an example of ‘good cause’ warranting the introduction of additional evidence.”). We also held that, in such circumstances, “the plaintiff need not demonstrate that the conflict caused her actual prejudice in order for the court to consider the conflict to be ‘good cause.’ ” Id. at 67. Several district courts in this Circuit— including the District Court below — have interpreted DeFelice as holding that an administrator’s dual status as claims reviewer and claims payor is per se “good cause” for allowing additional evidence upon a de novo review of factual issues. See Locher v. Unum Life Ins. Co. of Am., 126 F.Supp.2d 769, 773 (S.D.N.Y.2001); see also, e.g., Keiser v. CDC Inv. Mgmt. Corp., No. 99 Civ. 12101, 2003 WL 1733729, at *10 (S.D.N.Y. Mar. 25, 2003) (“[T]he decision-maker’s conflict of interest is per se ‘good cause’ under DeFelice for allowing the Court to consider evidence that was not before the Plan administrator.”); Parker v. Reliance Standard Life Ins. Co., No. 99 Civ 1822, 2000 WL 97362, at *3 (S.D.N.Y. Jan. 27, 2000) (“[I]t is undisputed that Reliance both makes the eligibility determinations under the [p]lan and pays the disability benefits. That fact alone makes Reliance a conflicted administrator under DeFelice and its progeny.”) (internal citation omitted). Other district courts found no per se rule and held that “good cause” is established under DeFelice only if the plaintiff can demonstrate that the administrator was conflicted and that the additional evidence “should have been included in the administrative record but was not, because of no fault of the claimant.” Suozzo v. Bergreen, No. 00 Civ 9649, 2003 WL 22387083, at *4 (S.D.N.Y. Oct. 20, 2003); see also Kaus-Rogers v. Unum Life Ins. Co. of Am., No. 01 CV 709S, 2004 WL 1166640, at * 5 (W.D.N.Y. April 4, 2004). We take this opportunity to clarify our holding in DeFelice and make plain that a conflict of interest does" }, { "docid": "22879971", "title": "", "text": "to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002). Although generally an administrator’s decision to deny benefits is reviewed de novo, where, as here, “written plan documents confer upon a plan administrator the discretionary authority to determine eligibility, we will not' disturb the administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’ ” Pagan, 52 F.3d at 441. After the Supreme Court rendered its decision in Metropolitan Life Insurance Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), this court explained that “a plan under which an administrator both evaluates and pays benefits claims creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion, but does not make de novo review appropriate.” McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir.2008). A plaintiffs showing that the administrator’s conflict of interest affected the choice of a reasonable interpretation is only one of “several different considerations” that judges must take into account when “review[ing] the lawfulness of benefit denials.” Id. (internal quotation marks omitted). In light of this, we find unpersuasive Hobson’s assertion that de novo review is warranted on the basis of MetLife’s structural conflict of interest. We now turn to the question of whether the district court erred in weighing MetLife’s conflict of interest. Hobson alleges that the district court failed to take into account two documents in the record which show that MetLife was influenced by its conflict of interest. The district court properly explained that it “must defer to the administrator’s decision unless the decision is arbitrary and capricious,” and that “the deference to be given to the administrator doesn’t change unless the plaintiff shows that the administrator was, in fact, influenced by the conflict of interest.” Hobson, No. 05 CV 7321, Tr. at 4-5. The district court, however, failed to (1) discuss the evidence allegedly showing that MetLife’s conflict of interest influenced its decision-making, (2) determine what role MetLife’s conflict of interest may have" }, { "docid": "17580168", "title": "", "text": "nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record[,3” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir.2006) (en banc); see also Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949-50 (9th Cir.2007) (“Because an ERISA plaintiff may be permitted to supplement the administrative record with evidence of a conflict of interest on the part of the defendant, we agree with [plaintiff] that some discovery aimed at demonstrating a conflict of interest may ... be[ ] appropriate.” (citation omitted; emphasis in original)), as well as the proper standard of review to be applied. Klund, 417 F.Supp.2d at 1159-60; Medford, 244 F.Supp.2d at 1129. The default standard of review in an ERISA action is de novo, but the Court will review the decision for abuse of discretion if an ERISA plan grants discretion to the plan administrator. Metropolitan Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008); Abatie, 458 F.3d at 963. Here, the district court has not had an opportunity to rule on the appropriate standard of review in this case, and the parties do not agree on whether a de novo or abuse of discretion standard is applicable. See, e.g., Jt. Stip. at 4:10-15, 8:6-12. Therefore, discovery related to the proper standard of review is particularly appropriate. Moreover, plaintiff states that “Cisco delegated claims administration to the plan insurer, Unum Life Insurance Company of America.” Intro, at 2:8-9. Since defendant does not dispute this statement, the Court accepts it as true for purposes of this discovery dispute, even though plaintiff has not attached any documents to her complaint showing the exact nature of UNUM’s relationship to defendant or the Plan. See Declaration of David Durchfort (“Durchfort Deck”) ¶ 4, Exhibits. UNUM’s dual status as claims administrator and insurer gives rise to a conflict of interest. Glenn, 128 S.Ct. at 2349-50; see also Saffon, 522 F.3d at 868 (“[The claims administrator] labors under ... a conflict of interest: It both decides who gets benefits and pays for them," }, { "docid": "2683147", "title": "", "text": "Court must confront the issue of whether the de novo review is limited to the record established by the administrator, or whether the de novo review essentially constitutes a new trial of plaintiffs claim, giving the plaintiff the right to supply additional evidence to the Court. At issue is the factual question of whether Lijoi was disabled, under the terms of the plan, at the time Continental terminated his benefits. The Second Circuit addressed this question initially in DeFelice v. Am. Int’l. Life Assurance Co. of New York, 112 F.3d 61 (2d Cir.1997), holding that the review “is limited to the record in front of the claims administrator unless the district court finds good cause to consider additional evidence.” Id. at 67. Finding good cause existed, the court noted that where good cause exists, the district court may assume an active role in order to ensure a comprehensive and impartial review of the case: [Where good cause exists] courts must exercise fully their power to review de novo and to be substitute [plan] administrators. Plaintiffs are utterly helpless against the whim of the [administrator’s] interpretation of the facts. The normal scope of limited “de novo” review is inappropriate where the fairness of the ERISA appeals process cannot be established using only the record before the administrator ... [We hold that] upon de novo review, even purely factual interpretation cases may provide a district court with good cause to admit evidence not available at the administrative level if the administrator was not disinterested. In this situation, the district court may assume an active role in order to ensure a comprehensive and impartial review of the case. Id. at 66 (emphasis in original). DeFelice suggested a number of factors that indicate good cause exists to admit additional evidence. It pointed to the conflict inherent in an appeals committee comprised of solely administrator personnel, and noted its concerns with a lack of established criteria for determining appeals and the destruction of appeals committee minutes immediately following meetings. Id. at 66. Such concerns were echoed in Locher v. Unum Life Ins. Co. of Am.," }, { "docid": "23679202", "title": "", "text": "Court to consider evidence that was not before the Plan administrator.”); Parker v. Reliance Standard Life Ins. Co., No. 99 Civ 1822, 2000 WL 97362, at *3 (S.D.N.Y. Jan. 27, 2000) (“[I]t is undisputed that Reliance both makes the eligibility determinations under the [p]lan and pays the disability benefits. That fact alone makes Reliance a conflicted administrator under DeFelice and its progeny.”) (internal citation omitted). Other district courts found no per se rule and held that “good cause” is established under DeFelice only if the plaintiff can demonstrate that the administrator was conflicted and that the additional evidence “should have been included in the administrative record but was not, because of no fault of the claimant.” Suozzo v. Bergreen, No. 00 Civ 9649, 2003 WL 22387083, at *4 (S.D.N.Y. Oct. 20, 2003); see also Kaus-Rogers v. Unum Life Ins. Co. of Am., No. 01 CV 709S, 2004 WL 1166640, at * 5 (W.D.N.Y. April 4, 2004). We take this opportunity to clarify our holding in DeFelice and make plain that a conflict of interest does not per se constitute “good cause” to consider evidence outside of the administrative record upon a de novo review of factual issues bearing on an administrator’s denial of ERISA benefits. As noted above, in DeFelice, we based our holding not only on a demonstrated conflict of interest, but also upon the procedural problems with the plan administrator’s appeals process. 112 F.3d at 66. We found significant that the appeals committee had no established criteria for determining an appeal and had a practice of destroying records within minutes after hearing an appeal. See id. Moreover, a per se rule would effectively eliminate the “good cause” requirement and the discretion afforded to district courts in deciding whether to admit additional evidence, because claims reviewers and payors are almost always either the same entity or financially connected in some other way. Cf. DeFelice, 112 F.3d at 66 (setting forth requirement of “good cause”); Critchlow v. First UNUM Life Ins. Co. of America, 340 F.3d 130, 133 n. 2 (2d Cir.2003) (noting that the decision to “consider information outside" }, { "docid": "23679200", "title": "", "text": "Cir.1990),] that district courts should not become ‘substitute plan administrators’ is in appropriate.” 112 F.3d at 66. When an administrator is conflicted, we stated, “[plaintiffs are utterly helpless against the whim of [its] interpretation of the facts,” and “the fairness of the ERISA appeals process cannot be established using only the record before the administrator.” Id. “In such circumstances,” we held, “[district] courts must exercise fully their power to review [benefits determinations] de novo and to be substitute administrators.” Id. Thus, in DeFelice, we set forth the principle that the decision “whether to admit additional evidence is one which is discretionary with the district court, but which discretion ought not to be exercised in the absence of good cause,” and we applied that principle by holding that, “upon de novo review, even purely factual interpretation cases may provide a district court with good cause to exercise its discretion to admit evidence not available at the administrative level if the administrator was not disinterested” and, “[i]n this situation, the district court may assume an active role in order to ensure a comprehensive and impartial review of the case.” 112 F.3d at 66; see also id. at 67 (“A demonstrated conflict of interest in the administrative reviewing body is an example of ‘good cause’ warranting the introduction of additional evidence.”). We also held that, in such circumstances, “the plaintiff need not demonstrate that the conflict caused her actual prejudice in order for the court to consider the conflict to be ‘good cause.’ ” Id. at 67. Several district courts in this Circuit— including the District Court below — have interpreted DeFelice as holding that an administrator’s dual status as claims reviewer and claims payor is per se “good cause” for allowing additional evidence upon a de novo review of factual issues. See Locher v. Unum Life Ins. Co. of Am., 126 F.Supp.2d 769, 773 (S.D.N.Y.2001); see also, e.g., Keiser v. CDC Inv. Mgmt. Corp., No. 99 Civ. 12101, 2003 WL 1733729, at *10 (S.D.N.Y. Mar. 25, 2003) (“[T]he decision-maker’s conflict of interest is per se ‘good cause’ under DeFelice for allowing the" }, { "docid": "16377061", "title": "", "text": "internal quotation marks omitted). Upon de novo review, “a district court may render a determination on a claim without deferring to an administrator’s evaluation of the evidence,” and “is free to evaluate a treating physician’s opinion in the context of any factors it considers relevant, such as the length and nature of their relationship, the level of the doctor’s expertise, and the compatibility of the opinion with the other evidence.” Id. at 296-97 (citation, internal quotation marks and brackets omitted). A fortiori, a district judge’s freedom of evaluation extends to the opinions of non-treating physicians who have not examined a plaintiff and base their opinions solely upon the documents in an insurance company’s claim file. I apply these principles to the Findings of Fact in this case. 65. The related question is whether a district court’s de novo review of factual issues in an ERISA case is limited to a review of the administrative record or whether the court may consider evidence outside that record. It is generally held that while a district court has discretion to admit evidence outside the administrative record, there must be “good cause” for doing so. See Sheehan II, 2003 WL 22290230, at *3. The Second Circuit addressed that question of “good cause” in Locher. Prior to the Locher decision in November 2004, a number of district courts in this circuit had interpreted the Second Circuit’s opinion in DeFelice v. Am. Int’l Life Assurance Co. of New York, 112 F.3d 61 (2d Cir.1997), “as holding that an administrator’s dual status as claims reviewer and claims payor is per se ‘good cause’ for allowing additional evidence upon a de novo review of factual issues.” Locher, 389 F.3d at 294 (citing cases). “Other district courts found no per se rule and held that ‘good cause’ is established under DeFelice only if the plaintiff can demonstrate that the administrator was conflicted and that the additional evidence should have been included in the administrative record but was not, because of no fault of the claimant.” Id. (citations and internal quotation marks omitted). In Locher the Second Circuit undertook to" }, { "docid": "8917867", "title": "", "text": "fact that the administrator both determines eligibility and pays benefits serves only as “a factor to be weighed in determining whether there has been an abuse of discretion.” Pulvers, 210 F.3d at 92 quoting Sullivan, 82 F.3d at 1255-256. Plaintiff has not shown that Liberty’s decision was in fact influenced by the asserted conflict by merely claiming, as does Plaintiff, that Liberty is both the administrator and payer of benefits under the Policy. Such generalized assertion of conflict alone does not shift the standard of review. Henar v. First Unum Life Insurance Company, 2002 WL 31098495, *3 (S.D.N.Y. Sept. 19, 2002). Plaintiff also contends that because Liberty did not include lack of coverage as a reason for its denial of Plaintiffs request for disability benefits in its denial letter to Plaintiff, good cause exists to consider evidence outside the administrative record as to whether Plaintiff had established coverage under the Policy. Plaintiffs Memo randum at 4. “[T]he decision [of the distinct court] whether to admit additional evidence [beyond the administrative record] is one which is discretionary with the district court, but which discretion ought not be exercised in the absence of good cause.” Juliano, 221 F.3d at 288 citing DeFelice v. American Int’l Life Assurance Co. of New York, 112 F.3d 61, 66 (2d Cir.1997). The failure of Liberty to state lack of coverage as a reason for its denial of benefits in its notices deprived Plaintiff of an opportunity to make a contrary case to the administrator, and, thus, Plaintiff can not be faulted for having not provided Liberty, prior to its denial of benefits, with evidence of his coverage under the terms of the Policy. See Juliano, 221 F.3d at 288-89 (failure of an HMO to specify in its notices the reason for denial of benefits deprived the member of the ability to dispute the denial and, therefore, the case could not be decided solely on the administrative record). However, Plaintiff fails to proffer what extrinsic evidence he believes may tend to cause Defendant to reconsider its position that, even if Plaintiffs notice of claim should be found" }, { "docid": "2683148", "title": "", "text": "are utterly helpless against the whim of the [administrator’s] interpretation of the facts. The normal scope of limited “de novo” review is inappropriate where the fairness of the ERISA appeals process cannot be established using only the record before the administrator ... [We hold that] upon de novo review, even purely factual interpretation cases may provide a district court with good cause to admit evidence not available at the administrative level if the administrator was not disinterested. In this situation, the district court may assume an active role in order to ensure a comprehensive and impartial review of the case. Id. at 66 (emphasis in original). DeFelice suggested a number of factors that indicate good cause exists to admit additional evidence. It pointed to the conflict inherent in an appeals committee comprised of solely administrator personnel, and noted its concerns with a lack of established criteria for determining appeals and the destruction of appeals committee minutes immediately following meetings. Id. at 66. Such concerns were echoed in Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288 (2d Cir.2004), where the Circuit affirmed the district court’s finding of good cause where the administrator failed to maintain sufficient written procedures for initial and appellate review of claims. Such a procedural deficiency creates “opportunities for conflicts of interests to be exacerbated and, in such a case, the fairness of the ERISA appeals process cannot be established using only the record before the administrator.” Id. at 295, 296. Once the determination has been made to admit additional evidence into the de novo review, the Court is not temporally bound to evidence that either was, or should have been, available to the administrator at the time it made its claim determination. In Locher, defendant UNUM challenged the district court’s exercise of discretion to admit the testimony of Dr. Podell, an expert witness retained by the plaintiff nearly seven years after the claim was initially denied. Locher; 389 F.3d at 296-297. Locher’s disability benefits had been denied by UNUM in 1993 but the plaintiff was not seen by Dr. Podell until 2000. Once the" }, { "docid": "5584496", "title": "", "text": "a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.” Glenn, 554 U.S. at 108, 128 S.Ct. 2343 (citing Firestone, 489 U.S. at 115,109 S.Ct. 948). The Second Circuit, however, has held that “[n]o weight is given to a conflict in the absence of any evidence that the conflict actually affected the administrator’s decision.” Durakovic, 609 F.3d at 140 (citing Hobson, 574 F.3d at 83). DISCUSSION I. Defendants’ Motion to Strike “[A] district court’s review under the arbitrary and capricious standard is limited to the administrative record.” Miller, 72 F.3d at 1071; see also Rund v. JPMorgan Chase Grp. Long Term, Disability Plan, No. 10 Civ. 5284, 2012 WL 1108003, at *1, 2012 U.S. Dist. LEXIS 48525, at *3 (S.D.N.Y. Mar. 30, 2012) (“When a court reviews an administrator’s discretionary decision determining eligibility for benefits under a discretionary standard of review, the court may not consider evidence outside of the administrative record.”); Maskara v. First UNUM Life Ins. Co., No. 03 Civ. 498, 2004 WL 1562722, at *1, 2004 U.S. Dist. LEXIS 13002, at *2 (S.D.N.Y. July 13, 2004) (“Judicial review of defendant’s denial of ERISA plan benefits to plaintiff ... is concededly limited to a review of the administrative record.”) (citing Miller, 72 F.3d at 1071). “The administrative record consists of the documents before the claims administrator when the decision regarding benefits was made.” Rund, 2012 WL 1108003, at *1, 2012 U.S. Dist. LEXIS 48525, at *3 (citing Krizek v. Cigna Group Ins., 345 F.3d 91, 97 (2d Cir.2003)). On February 24, 2012, defendants moved to strike what they claimed were improper extra-record submissions included with plaintiffs summary judgment motion. Specifically, plaintiff included documents that were not contained in the administrative record, including an affidavit dated January 31, 2012, a Social Security Administration (“SSA”) Notice of Decision dated February 9, 2010, and a SSA Notice of Award dated March 25, 2010. Defs.’ Mem. in Supp. of Mot. to Strike 1" }, { "docid": "17938", "title": "", "text": "a determination that plaintiff is unable to perform the essential duties of any occupation,” the court turned to Krizek’s subjective complaints. The court ultimately decided not to credit Krizek’s complaints regarding her pain, fatigue, and other symptoms, explaining that her subjective claims were belied by her work with the Special Olympics, her preparation of a detailed appeal of INA’s denial of benefits, and her competence on direct and cross examination at trial. Discussion I. Evidence Outside Administrative Record Krizek argues that the District Court erred in limiting its review to the record before the claims administrator. Although the court admitted at trial evidence that was not before the administrator, the court did not consider this additional evidence in reaching its decision. Krizek maintains that the court instead should have expanded its review to consider this evidence because the plan administrator operated under a conflict of interest. Krizek argues that, because INA, the underwriting company, is a subsidiary of CIGNA, the entity determining eligibility for benefits was also the company that would have ultimately paid those benefits. A district judge may expand its review of an administrative decision beyond the record in front of the claims administrator upon finding “good cause” warranting the introduction of additional evidence. Zervos v. Verizon, N.Y., Inc., 277 F.3d 635, 646 (2d Cir.2002). A “demonstrated conflict of interest in the administrative reviewing body” can constitute “good cause.” DeFelice v. Am. Int’l Life Assurance Co. of N.Y., 112 F.3d 61, 67 (2d Cir.1997). The decision whether to consider evidence beyond the administrative record lies in the discretion of the district court and is not disturbed absent an abuse of that discretion. See Muller v. First Unum Ins. Co., 341 F.3d 119, 125, 2003 WL 21961158, at *5 (2d Cir. Aug.18, 2003). Our case law requires a “demonstrated conflict of interest,” DeFelice, 112 F.3d at 67 (emphasis added), which places an affirmative burden on the plaintiff to establish that the plan administrator was sufficiently conflicted so as to expand the administrative record. As conceded by appellant counsel at oral argument, however, the issue of conflict was never raised" }, { "docid": "5584497", "title": "", "text": "evidence outside of the administrative record.”); Maskara v. First UNUM Life Ins. Co., No. 03 Civ. 498, 2004 WL 1562722, at *1, 2004 U.S. Dist. LEXIS 13002, at *2 (S.D.N.Y. July 13, 2004) (“Judicial review of defendant’s denial of ERISA plan benefits to plaintiff ... is concededly limited to a review of the administrative record.”) (citing Miller, 72 F.3d at 1071). “The administrative record consists of the documents before the claims administrator when the decision regarding benefits was made.” Rund, 2012 WL 1108003, at *1, 2012 U.S. Dist. LEXIS 48525, at *3 (citing Krizek v. Cigna Group Ins., 345 F.3d 91, 97 (2d Cir.2003)). On February 24, 2012, defendants moved to strike what they claimed were improper extra-record submissions included with plaintiffs summary judgment motion. Specifically, plaintiff included documents that were not contained in the administrative record, including an affidavit dated January 31, 2012, a Social Security Administration (“SSA”) Notice of Decision dated February 9, 2010, and a SSA Notice of Award dated March 25, 2010. Defs.’ Mem. in Supp. of Mot. to Strike 1 (ECF Dkt. No. 67) (“Defs.’ Mot. to Strike”). According to defendants, these documents were dated years after MetLife rendered its final determination on administrative appeal, and therefore are not part of the administrative claim file pertaining to Ms. Novick’s claim for STD benefits. Defs.’ Mot to Strike 1. As such, defendants argue that this court cannot consider these materials in determining whether MetLife’s decision-making, resulting in the termination of plaintiffs STD benefits, was arbitrary and capricious. Defendants further argue that, to the extent that the court considers plaintiffs claim for LTD benefits under a de novo review, no “good cause” exists for this court to consider these extra-record submissions because they are irrelevant to the question of whether Ms. Novick was disabled under the Plan’s terms, and therefore entitled to these benefits. In response, plaintiff argues that the information in the extra-record submissions is necessary, and asks the court to deny defendants’ Motion to Strike in its entirety, or strike only paragraph one of the affidavit, which notes the correct date of Ms. Novick’s tick" }, { "docid": "17939", "title": "", "text": "benefits. A district judge may expand its review of an administrative decision beyond the record in front of the claims administrator upon finding “good cause” warranting the introduction of additional evidence. Zervos v. Verizon, N.Y., Inc., 277 F.3d 635, 646 (2d Cir.2002). A “demonstrated conflict of interest in the administrative reviewing body” can constitute “good cause.” DeFelice v. Am. Int’l Life Assurance Co. of N.Y., 112 F.3d 61, 67 (2d Cir.1997). The decision whether to consider evidence beyond the administrative record lies in the discretion of the district court and is not disturbed absent an abuse of that discretion. See Muller v. First Unum Ins. Co., 341 F.3d 119, 125, 2003 WL 21961158, at *5 (2d Cir. Aug.18, 2003). Our case law requires a “demonstrated conflict of interest,” DeFelice, 112 F.3d at 67 (emphasis added), which places an affirmative burden on the plaintiff to establish that the plan administrator was sufficiently conflicted so as to expand the administrative record. As conceded by appellant counsel at oral argument, however, the issue of conflict was never raised before the District Court. Indeed, the court expressly based its decision not to expand the record on this failure to produce evidence establishing a conflicted administrator, concluding that “plaintiff has introduced no evidence demonstrating this alleged conflict, nor has plaintiff made any specific argument, or indicated where, if anywhere, in the Administrative Record, this conflict of interest is illustrated. Accordingly, the Court has no basis upon which to assess whether a conflict of interests exists.” We agree with this conclusion. Krizek’s failure to offer evidence showing a conflict, and even to argue that a conflict existed, precluded expansion of the court’s review on conflict grounds. Krizek suggests that INA conceded the existence of a conflict by not objecting to the admission of additional evidence beyond the record. INA’s failure to object, however, did not relieve Krizek of her affirmative burden to demonstrate a conflict. Because there was no basis for expanding its review on conflict of interest grounds, the District Court did not abuse its discretion by limiting its review to the administrative record. II." }, { "docid": "7936563", "title": "", "text": "v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir.2009) (quoting Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1002-03 (10th Cir. 2004), abrogated on other grounds by Glenn, 128 S.Ct. at 2351); see also Weber, 541 F.3d at 1010 n. 10 (describing terms “arbitrary and capricious” and “abuse of discretion” as interchangeable in this context). Our cases, however, have failed to provide clear guidance to the district court regarding the appropriate standard for resolving discovery requests in these types of cases. See Kohut v. Hartford Life and Accident Ins. Co., 710 F.Supp.2d. 1139, 1152, 2008 WL 5246163, *12 (D.Colo. Dec.16, 2008) (describing our case law as exhibiting “judicial schizophrenia”). As a starting point, we have frequently, consistently, and unequivocally reiterated that, “ ‘in reviewing a plan administrator’s decision under the arbitrary and capricious standard, the federal courts are limited to the administrative record.’ ” Weber, 541 F.3d at 1011 (quoting Fought, 379 F.3d at 1003); see also, e.g., Holcomb, 578 F.3d at 1192 (10th Cir.2009) (citing Fought, 379 F.3d at 1003); Fought, 379 F.3d at 1003 (citing Hall v. UNUM Life Ins. Co. of Am., 300 F.3d 1197, 1201 (10th Cir.2002)); Hall, 300 F.3d at 1201 (citing Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380-81 (10th Cir.1992), and Woolsey v. Marion Labs., 934 F.2d 1452, 1460 (10th Cir.1991)); Sandoval, 967 F.2d at 380 (citing out-of-circuit cases); Woolsey, 934 F.2d at 1460 (citing out-of-circuit cases). Because we generally restrict district courts’ review of an administrator’s decision to the administrative record and because Federal Rule of Civil Procedure 26(b)(1) permits discovery only where it “appears reasonably calculated to lead to the discovery of admissible evidence,” extra-record discovery would generally seem inappropriate. However, even as we have told district courts to limit their analysis to the administrative record, we have also instructed the district courts to assess the effect of a dual role conflict of interest in a manner that seems incompatible with a flat prohibition on extra-record discovery and supplementation. If an administrator operates under a dual role conflict of interest," }, { "docid": "12976404", "title": "", "text": "parties proceeded with discovery, and on December 2, 2008, Garvey served Defendants with discovery requests relating to a potential conflict of interest in Standard’s claim denial. Specifically, Garvey sought information regarding (1) the identities and compensation of Standard’s employees and other third-parties responsible for reviewing and denying his claim; (2) Standard’s policies and procedures; (3) statistics as to approval/denial/termination rates under the Plan; and (4) Standard’s financial information. Defendants objected to all of these requests, insisting that Garvey is not entitled to anything other than the administrative record. Garvey responded with a motion to compel, and the district court has referred the matter to this court for resolution. DISCUSSION When, as here, a plan administrator has discretionary authority to make benefits determinations, courts generally limit discovery to the administrative record. Vallone v. CNA Financial Corp., 375 F.3d 623, 629 (7th Cir.2004). The Seventh Circuit has cautioned that “discovery is normally disfavored in the ERISA context” and is only available in “exceptional circumstances.” Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 814-15 (7th Cir.2006). Specifically, the Seventh Circuit has allowed “limited discovery” where a plaintiff can both “identify a specific conflict of interest or instance of misconduct,” and “make a prima facie showing that there is good cause to believe limited discovery will reveal a procedural defect in the plan administrator’s determination.” Id. at 815. A. The Glenn Decision The question presented here is whether the Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), has any effect on these special discovery rules. The plan in Glenn “grant[ed] MetLife (as administrator) discretionary authority to determine whether an employee’s claim for benefits [wa]s valid; it simultaneously provided] that MetLife (as insurer) w[ould] itself pay valid benefit claims.” Id. at 2346. The Court found that this dual role creates a structural conflict of interest that “must be weighed as a ‘factor in determining whether there is an abuse of discretion.’” Id. at 2348 (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948," }, { "docid": "2683146", "title": "", "text": "his legal options.”); CLM 16 (“The additional medical information submitted with your correspondence does not alter the Company’s decision of December 8,1998. You have exhausted all administrative remedies offered by the appeals process. The decision of December 8, 1998 is final and binding.”)). As a result, the Court engages in a de novo review of all aspects of the determination. In applying the de novo standard, this Court reviews “all aspects of the denial of [the claim], including fact issues,” Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 245 (2d Cir.1999), “to determine for itself whether the claimant should be granted or denied the requested relief.” Elsroth v. Consolidated Edison Co. of New York, 10 F.Supp.2d 427, 434 (S.D.N.Y.1998) (citing DeFelice v. American Int’l Life Assurance Co. of N.Y., 112 F.3d 61, 65 (2d Cir.1997)). III. Scope of Review A. Legal Standards Having decided that it must engage in de novo review of defendant’s decision to terminate disability benefits, the Court must determine the scope of the de novo review. Specifically, the Court must confront the issue of whether the de novo review is limited to the record established by the administrator, or whether the de novo review essentially constitutes a new trial of plaintiffs claim, giving the plaintiff the right to supply additional evidence to the Court. At issue is the factual question of whether Lijoi was disabled, under the terms of the plan, at the time Continental terminated his benefits. The Second Circuit addressed this question initially in DeFelice v. Am. Int’l. Life Assurance Co. of New York, 112 F.3d 61 (2d Cir.1997), holding that the review “is limited to the record in front of the claims administrator unless the district court finds good cause to consider additional evidence.” Id. at 67. Finding good cause existed, the court noted that where good cause exists, the district court may assume an active role in order to ensure a comprehensive and impartial review of the case: [Where good cause exists] courts must exercise fully their power to review de novo and to be substitute [plan] administrators. Plaintiffs" }, { "docid": "2683149", "title": "", "text": "389 F.3d 288 (2d Cir.2004), where the Circuit affirmed the district court’s finding of good cause where the administrator failed to maintain sufficient written procedures for initial and appellate review of claims. Such a procedural deficiency creates “opportunities for conflicts of interests to be exacerbated and, in such a case, the fairness of the ERISA appeals process cannot be established using only the record before the administrator.” Id. at 295, 296. Once the determination has been made to admit additional evidence into the de novo review, the Court is not temporally bound to evidence that either was, or should have been, available to the administrator at the time it made its claim determination. In Locher, defendant UNUM challenged the district court’s exercise of discretion to admit the testimony of Dr. Podell, an expert witness retained by the plaintiff nearly seven years after the claim was initially denied. Locher; 389 F.3d at 296-297. Locher’s disability benefits had been denied by UNUM in 1993 but the plaintiff was not seen by Dr. Podell until 2000. Once the court determined that good cause existed to admit additional evidence, it admitted Dr. Podell’s testimony for the purpose of “confirming] the diagnosis of [Chronic Fatigue Syndrome] and disability as of April 1993, and [finding] credible Locher’s account of the progress of her illness.” Id. at 292. The ruling was upheld on appeal, with the Circuit treating UNUM’s objection to the introduction of Dr. Podell’s testimony as a “reiteration of] its argument that the District Court improperly considered evidence outside of the administrative record.” The Court further noted that once a district court properly rules to consider evidence outside the administrative record, it “may render a determination on a claim without deferring to an administrator’s evaluation of the evidence.” Id. at 296 (citing Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 135 (2d Cir.2001) (noting that, upon de novo review, a district court is “free to evaluate [a treating physician’s] opinion in the context of any factors it considered relevant, such as the length and nature of their relationship, the level of the doctor’s" } ]

[ { "docid": "4790032", "title": "", "text": "15 U.S.C. § 1681q reads in full: Any person who knowingly and wilfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined not more than $5000 or imprisoned not more than one year, or both. In Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.1978), the Ninth Circuit explained that “[t]he standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b.” That is, assuming that a consumer reporting agency is issuing reports only for what it believes to be a permissible purpose in compliance with § 1681b, a user of information who does not have a permissible purpose “cannot utilize an account with [this agency] ... without using a false pretense.” Id. The court held that “obtaining a consumer report in violation of the terms of the statute without disclosing the immpermissible (sic) purpose for which the report is desired can constitute obtaining consumer information under false pretenses.” Id. at 1219-20; see also Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982) (citing Hansen and finding impermissible purpose and false pretenses); Klapper, 586 N.Y.S.2d at 851 (same). Following the logic of Hansen, if a user of information had a permissible purpose to obtain a consumer report, then the user did not obtain the report from an agency under “false pretenses.” Zeller v. Samia, 758 F.Supp. 775, 781-82 (D.Mass.1991) (granting summary judgment for defendants because defendants had permissible purpose and thus did not obtain report under false pretenses). In the instant case, defendants had a permissible purpose to obtain the consumer report as private investigators working on behalf of a judgment creditor. It is immaterial that they may have indicated to Datalink that they had plaintiffs authorization for the report, because no such authorization was needed. As a matter of law, they did not obtain the report under false pretenses. This same conclusion applies to the companion state law provision of N.Y.Gen.Bus. § 380-o. See Klapper v. Shapiro, 154" } ]

[ { "docid": "8594671", "title": "", "text": "on a user of information who negligently fails to comply with the Act’s requirements. Hanson v. Morgan, 582 F.2d at 1219. Since violation of Section 1681q occurs only when an individual acts knowingly and willfully, Section 1681n rather than Section 168 lo is the proper vehicle for civil liability for violations of Section 1681q. WELLFORD, Circuit Judge, concurring. I concur with the decision reached in this case which cites with approval Hansen v. Morgan, 582 F.2d 1214 (9th Cir.1978). That decision concluded that § 1681q “does state a ‘requirement imposed under this subchapter’ ” (referring to the FCRA). Id. at 1219. The Hansen court, however, added a sentence after reaching its conclusion: If the agency [consumer reporting agency] is complying with the statute, then a user cannot utilize an accout with a consumer reporting agency to obtain consumer information for a purpose not permitted under § 1681b without using a false pretense. Id. I am not sure the above rationale necessarily follows from the language of § 1681b, which refers to “permissible purposes of consumer reports” (emphasis added), because “permissible purposes” and “false pretenses” are not necessarily so integrated. The willful and knowing requirement in the “false pretenses” section (1681q) was omitted in the above quoted statement. Thus, for example, one may obtain a consumer report under what is believed to be a proper purpose under the statute but which a court may later rule to be impermissible legally under § 1681b; I would not be prepared to rule that use to be one obtained under the willful and knowing false pretense standard of § 1681b. As noted also in Hansen, 582 F.2d at 1218, under another section of Title 15, civil liability is limited under the FCRA to instances involving malice or willful intent to injure. Our decision, therefore, should not be interpreted as requiring less than a willful and purposeful act with a motivation to injure in order to establish liability under the FCRA." }, { "docid": "16784198", "title": "", "text": "purposes’ when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” 15 U.S.C. § 1681a(h). The FCRA defines a consumer as “an individual.” Id. § 1681a(c). Nothing in the FCRA indicates that a consumer credit report for “employment purposes” may be obtained on any person other than the actual individual whose employment is being considered. By enacting the FCRA, Congress intended to prevent invasions of consumers’ privacy. See 15 U.S.C. § 1681; Hansen v. Morgan, 582 F.2d 1214, 1220 (9th Cir.1978); In re TRW, Inc., 460 F.Supp. 1007, 1009 (E.D.Mich. 1978). Permitting a user of consumer reports to obtain information on a spouse for “employment purposes” would violate the right to privacy Congress intended to protect. II Defendant argues that the district court erred in its definition of false pretenses by relying on the permissible purposes for obtaining a consumer report listed in § 1681b, to the exclusion of the willful and knowing requirement. We disagree. The district court properly defined false pretenses, and there is ample evidence in the record from which the jury could conclude that defendant knew a request for spousal information was not permissible. 15 U.S.C. § 1681q imposes criminal liability upon any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency ui’dor false pretenses. 15 U.S.C. § 1681n provides a private cause of action against any person who willfully fails to comply with any “requirement” of the FCRA. Violation of § 1681q provides a basis for civil suit pursuant to § 1681n. Hansen v. Morgan, 582 F.2d at 1219; Kennedy v. Border City Savings & Loan Ass’n, 747 F.2d 367, 369 (6th Cir.1984); cf. Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 697 (10th Cir.1980) (deferring consideration of this issue). Whether a consumer report has been obtained under false pretenses will ordinarily be determined by reference to the permissible purposes for which consumer reports may be obtained, as enumerated in § 1681b. Hansen, 582 F.2d at 1219; Boothe v." }, { "docid": "1404935", "title": "", "text": "permissible business reasons, § 1681b(a)(3). Phillips pursues two theories under the Fair Credit Reporting Act — that the defendants obtained a consumer report on him by use of false pretenses, § 1681q, and that they obtained a consumer report for an impermissible purpose, § 1681b(f). The district court concluded that these two theories were distinct causes of action and held that Phillips had failed to plead violation of section 1681b(f), obtaining a consumer report for an impermissible purpose, because his complaint only mentioned section 1681q, obtaining a consumer report under false pretenses. However, as discussed below, we conclude that these two theories coincide. Although at one time it made sense to refer to a civil claim for obtaining a consumer report without a permissible purpose as arising under section 1681q, amendments to the statute in 1996 open a more straightforward path to civil liability for the same conduct. 15 U.S.C. § 1681q, which prohibits obtaining consumer information willfully and by use of false pretenses, is on its face a criminal statute. The reasons for its use as a basis for civil liability are historical, and it is now largely redundant as a basis for civil liability. Originally the Fair Credit Reporting Act provided two distinct civil causes of action for failure to comply with requirements of the Act, one cause for willful violations and one for negligent violations. 15 U.S.C. §§ 1681n (1994) (willful noncompliance) and 1681o (1994) (negligent noneompliance). In addition to the civil liability provisions, section 1681q made it a criminal offense to willfully request information on a consumer from a consumer reporting agency under false pretenses. 15 U.S.C. § 1681q (1994). After the Fair Credit Reporting Act was enacted in 1970, courts noticed what appeared to be a loophole. The original sections 1681n and 1681o only created civil liability for failure to comply with the Act. The original section 1681b, which generally stated the circumstances under which consumer reporting agencies could provide reports, did not impose a duty on users of reports to refrain from requesting reports without a proper purpose. § 1681b only limits the dissemination" }, { "docid": "16784199", "title": "", "text": "district court properly defined false pretenses, and there is ample evidence in the record from which the jury could conclude that defendant knew a request for spousal information was not permissible. 15 U.S.C. § 1681q imposes criminal liability upon any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency ui’dor false pretenses. 15 U.S.C. § 1681n provides a private cause of action against any person who willfully fails to comply with any “requirement” of the FCRA. Violation of § 1681q provides a basis for civil suit pursuant to § 1681n. Hansen v. Morgan, 582 F.2d at 1219; Kennedy v. Border City Savings & Loan Ass’n, 747 F.2d 367, 369 (6th Cir.1984); cf. Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 697 (10th Cir.1980) (deferring consideration of this issue). Whether a consumer report has been obtained under false pretenses will ordinarily be determined by reference to the permissible purposes for which consumer reports may be obtained, as enumerated in § 1681b. Hansen, 582 F.2d at 1219; Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982). A consumer reporting agency may only issue a report for the purposes listed in § 1681b. Hansen, 582 F.2d at 1219. Accordingly, if a user requests information for a purpose not permitted by § 1681b while representing to the reporting agency that the report will be used for a permissible purpose, the user may be subject to civil liability for obtaining information under false pretenses. Id. at 1219-20. In this case defendant’s vice president, William P. Inscho, Jr., informed the credit agency it sought information on plaintiff for “employment purposes.” A credit bureau employee testified that he would not have provided defendant the credit report had he known defendant’s actual purpose for seeking the report. But defendant appears to further contend that civil liability should not be imposed, because defendant did not knowingly and willfully seek information not permitted under the FRCA. This contention must also fail. The testimony at trial indicated that both Inscho, Jr. and another vice-president of the bank, William P. Inscho, Sr., knew" }, { "docid": "1404937", "title": "", "text": "of ‘consumer reports’ by ‘consumer reporting agencies.’ It does not, by its plain terms, place any duty upon persons to refrain from requesting consumer reports from individuals for purposes not authorized by the FCRA. Ippolito v. WNS, Inc., 864 F.2d 440, 448 n. 8 (7th Cir.1988); see 15 U.S.C. § 1681b (1994). Therefore, civil actions against users of information, rather than consumer reporting agencies, could not be premised on violation of the original section 1681b. See, e.g., Heath v. Credit Bureau, 618 F.2d 693, 697 (10th Cir.1980) (no liability for requesting a report because Act did not require defendant to refrain from request ing report, even without proper purpose). Courts avoided this loophole by reasoning that since section 1681q created criminal liability for requesting “information on a consumer” using false pretenses, this prohibition was a “requirement” of the Act, and therefore provided the substantive basis for civil liability. See Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.1978); Kennedy v. Border City S & L Ass’n, 747 F.2d 367, 369 (6th Cir.1984); Zamora v. Valley Fed. S & L Ass’n, 811 F.2d 1368, 1370 (10th Cir.1987); Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967, 971-72 (4th Cir.1987); Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 47 (2d Cir.1997). “False pretenses” was interpreted to mean failure to disclose the lack of a permissible purpose. See Northrop, 134 F.3d at 46 n. 6. The Fair Credit Reporting Act was amended in 1996 to add to section 1681b a provision that forbids using or obtaining a consumer report unless the report was obtained for a permitted purpose. 15 U.S.C. § 1681b(f) (2000). Moreover, section 1681n received new language imposing civil liability of a minimum of $1000 against natural persons for “obtaining a consumer report under false pretenses or knowingly without a permissible purpose.” 15 U.S.C. § 1681n (a)(1)(B) (2000). Thus, the civil liability provisions now explicitly cover the act of obtaining a consumer report without a permissible purpose, which formerly was included only by incorporating the criminal liability statute. Accordingly, Phillips’s reliance in his complaint on section 1681q" }, { "docid": "12483849", "title": "", "text": "wrongful discharge action lies when an employee is discharged “solely” because he has filed for workers’ compensation benefits.”). Indeed, Mr. Wiggins expressly states in his complaint that he was fired for racially motivated reasons. Therefore, count three of plaintiffs complaint is dismissed. V. The Fair Credit Reporting Act Count four alleges that defendant unlawfully obtained a false consumer report from Equifax, Inc. and used this report for impermissible purposes in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (hereinafter “the Act” or “the FCRA”). Compl. ¶¶ 47-50, 84-97. None of plaintiffs specific allegations state a cause of action against Philip Morris under the Act. First, plaintiff alleges that defendant requested an “unauthorized” consumer report on January 16, 1990 pursuant to 15 U.S.C. § 1681(a), “without written instruction required by 15 U.S.C. § 1681(b) [sic] and in violation of other provisions of the FCRA.” Compl. ¶ 87. Taking all of plaintiffs allegations as true, plaintiff fails to state a cause of action under sections 1681(a), 1681a, 1681b, or any other provision of the Act. Neither section 1681(a) nor section 1681a contain provisions that create liability under the FCRA. In addition, Philip Morris, as an alleged “user” of consumer information, is incapable of violating section 1681b of the Act. Section 1681b does not impose a duty upon a user to obtain written permission from a consumer prior to requesting a report from a consumer reporting agency. Next, defendant allegedly made false and fraudulent representations to Equifax, Inc. in order to procure a consumer report in violation of section 1681b. Compl. ¶ 88-90, 96. The Act does create liability for users who obtain a credit report under false pretenses for an impermissible purpose. See 15 U.S.C.A. § 1681q. “Whether a consumer report has been obtained under false pretenses will ordinarily be determined by reference to the permissible purposes for which consumer reports may be obtained, as enumerated in § 1681b.” Zamora v. Valley Fed. Sav. & Loan Ass’n, 811 F.2d 1368, 1370 (10th Cir.1987) (citing Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.1978); Boothe v. TRW Credit" }, { "docid": "23259436", "title": "", "text": "understanding that obtaining the report was improper. See Larry W. Thomason v. Jerry Franks, No. 16998 (N.D.Ga., Order of Sept. 16, 1975). However, under 15 U.S.C. § 1681d, obtaining a report is not a violation; only failing to disclose that the report was procured violates that provision. Thus the failure to disclose must have been willful in order to award punitive damages for a violation of that section. It is particularly troubling, however, that the deposition testimony of Franks that is cited in support of the finding of willfulness does not support a finding that his failure to disclose was willful. The foregoing raises the possibility that the district court found a basis for civil liability in a violation by Franks of 15 U.S.C. § 1681q, which provides penal sanctions for knowingly and willfully obtaining information from a consumer reporting agency under false pretenses. Such a cause of action has been recognized. See Hansen v. Morgan, 582 F.2d 1214, 1219-20 (9th Cir. 1978). As the court in Hansen stated: The standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b. This is because a consumer reporting agency can legally issue a report only for the purposes listed in § 1681b. If the agency is complying with the statute, then a user cannot utilize an account with a consumer reporting agency to obtain consumer information for a purpose not permitted by § 1681b without using a false pretense. 582 F.2d at 1219 (footnote omitted). This court is compelled to conclude that the district court premised its award of punitive damages upon a finding, albeit sub silencio, that Franks violated 15 U.S.C. § 1681q and that the express finding of “willfulness” by the court related to that violation. Consequently on remand, the bankruptcy court should determine whether either the failure to disclose or the obtaining of information under false pretenses was willful and malicious within the standards of section 17a(8) of the Bankruptcy Act. If either is found" }, { "docid": "18829472", "title": "", "text": "the consumer as to whom a credit profile is sought” (see Findings of Fact). As TRW does not require its subscribers to inform it of the purpose for each individual request for a credit report, it relies solely upon that certification. Indeed, there is virtually no way for TRW to be informed about the purpose for the request for a report unless the subscriber wishes to so inform it. Fidelifacts did not so inform TRW. As noted, however, Fidelifacts did not seek plaintiff’-s credit report in connection with a credit transaction involving plaintiff. Thus, it acquired the report under false pretenses. See Hansen v. Morgan, 582 F.2d 1214. 15 U.S.C. § 1681q, the Act’s criminal provision, makes subject to criminal penalties “[a]ny person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses.” This provision “requires that users of consumer information refrain from obtaining such information from credit reporting agencies under false pretenses.” Hansen v. Morgan, 582 F.2d at 1214, 1219 (9th Cir.1978). Section 1681q of the Act provides civil liability for “any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under [the Act] with respect to any consumer.” This provision, among other things, “authorizes a civil remedy against a user of a credit report who fails to comply with the act’s criminal provision.” Hansen v. Morgan, 582 F.2d at 1216; see Rice v. Montgomery Ward & Co., 450 F.Supp. 668 (M.D.N.C.1978). In short, a user who acquires the credit report under false pretenses is liable to the consumer as well as subject to potential criminal penalties. Hansen v. Morgan, 582 F.2d at 1216. The term “user” refers not only to the ultimate destination of a credit report but also encompasses the person who acquires it for another. Hansen v. Morgan, 582 F.2d 1214. Thus, Fidelifacts is properly considered a user, and is civilly liable to plaintiff because it acquired his credit report under false pretenses. “Obtaining a consumer report in violation of the terms of the statute without disclosing the immpermissible (sic) purpose for" }, { "docid": "18829471", "title": "", "text": "subject of the report or in which the subject was seeking some benefit mentioned in the Act (credit, insurance, employment licensing) from the requesting party.” Boothe v. TRW Credit Data, 80 Civ. 5073 (S.D.N.Y. August 26, 1981), slip op. at 4. See Hansen v. Morgan, 582 F.2d 1214 (9th Cir.1978). There was no such relationship between Mr. Boothe and Distillers or Fidelifacts at any time. In fact, there was no relationship whatsoever between plaintiff and Distillers; plaintiff sought nothing from Distillers. The court concludes that aiding in a private investigation of a suspected counterfeiter does not constitute a permissible purpose for acquiring a credit report of an individual pursuant to 15 U.S.C: § 1681b(3)(E). Thus, Fidelifacts requested and received plaintiff’s credit report for an improper purpose. Liability of Fidelifacts The court now confronts the issue of whether Fidelifacts is to be held liable for obtaining plaintiff’s report for an improper purpose. In its contract with TRW, Fidelifacts certifies that it will only request those credit reports for use “in connection with a credit transaction involving the consumer as to whom a credit profile is sought” (see Findings of Fact). As TRW does not require its subscribers to inform it of the purpose for each individual request for a credit report, it relies solely upon that certification. Indeed, there is virtually no way for TRW to be informed about the purpose for the request for a report unless the subscriber wishes to so inform it. Fidelifacts did not so inform TRW. As noted, however, Fidelifacts did not seek plaintiff’-s credit report in connection with a credit transaction involving plaintiff. Thus, it acquired the report under false pretenses. See Hansen v. Morgan, 582 F.2d 1214. 15 U.S.C. § 1681q, the Act’s criminal provision, makes subject to criminal penalties “[a]ny person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses.” This provision “requires that users of consumer information refrain from obtaining such information from credit reporting agencies under false pretenses.” Hansen v. Morgan, 582 F.2d at 1214, 1219 (9th Cir.1978). Section 1681q of the Act" }, { "docid": "5994044", "title": "", "text": "of five purposes listed in § 1681b(3). That section provides in pertinent part that [a] consumer reporting agency may furnish a consumer report ...' (3) to a person wMch it has reason to believe (A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or ... (E) otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer. (emphasis added). Section 1681b appears to impose requirements only on consumer reporting agencies. The parties in this ease dispute whether ASC is a consumer reporting agency or a user of credit information. That dispute does not require resolution, however, because the Fourth Circuit has concluded that users of consumer reports also must comply with § 1681b. Yohay v. City of Alexandria Employees Credit Union, 827 F.2d 967, 972 (4th Cir.1987) (Kaufman, J., sitting by designation). In Hansen v. Morgan, 582 F.2d 1214, 1216 (9th Cir.1978), the Ninth Circuit incorporated the criminal provisions of section 1681q into sections 1681n [Civil liability for willful noncompliance] and 1681o [Civil liability. for negligent noncompliance] and held that a user who obtains a consumer report under false pretenses, as those words are used in section 1681q, can be civilly liable under either section 1681n or 1681o. In Hansen, Judge Carter wrote that “[t]he standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b,” id. at 1219 (footnote omitted), “that obtaining a consumer report ... without disclosing the impermissible purpose for which the report is desired can constitute obtaining consumer information under false pretenses.” Id. at 971-72. Thus, whether defendants are users or consumer reporting agencies, they could only obtain Korotki’s report if they had a permissible purpose. To prove a violation of the FCRA, plaintiff must show that defendants had an impermissible purpose in obtaining the" }, { "docid": "5994045", "title": "", "text": "F.2d 1214, 1216 (9th Cir.1978), the Ninth Circuit incorporated the criminal provisions of section 1681q into sections 1681n [Civil liability for willful noncompliance] and 1681o [Civil liability. for negligent noncompliance] and held that a user who obtains a consumer report under false pretenses, as those words are used in section 1681q, can be civilly liable under either section 1681n or 1681o. In Hansen, Judge Carter wrote that “[t]he standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b,” id. at 1219 (footnote omitted), “that obtaining a consumer report ... without disclosing the impermissible purpose for which the report is desired can constitute obtaining consumer information under false pretenses.” Id. at 971-72. Thus, whether defendants are users or consumer reporting agencies, they could only obtain Korotki’s report if they had a permissible purpose. To prove a violation of the FCRA, plaintiff must show that defendants had an impermissible purpose in obtaining the credit report or, in other words, that they lacked a permissible purpose. The only purpose which the record reflects that defendants had was to obtain an alternate address at which to serve Korotki. In this Court’s view, that purpose is permissible under 15 U.S.C. § 1681b(3)(E); accordingly, defendants did not violate the FCRA. One question which arises is the standard that a court should use to determine whether a user has shown that he or she has a permissible purpose under § 1681b. That provision requires that the consumer reporting agency have “reason to believe” that the information it provides to a user will be used for one of the enumerated permissible purposes. The case law suggests that the burden on users is similar. For example, in Zeller v. Samia, 758 F.Supp. 775, 781-82 (D.Mass.1991), defendant had previously alleged that plaintiff owed him a debt and had obtained plaintiff’s consumer report in connection with collection of that debt. The court concluded that that purpose in obtaining a consumer report was permissible, even though defendant merely" }, { "docid": "18829474", "title": "", "text": "which the report is desired can constitute obtaining consumer information under false pretenses.” Hansen v. Morgan, 582 F.2d at 1219-20. Fidelifacts acquired plaintiff’s report for an impermissible purpose. It did not disclose that impermissible purpose to TRW. As Fidelifacts certified that it would only request reports in connection with a credit transaction involving the consumer and there was no such credit transaction in the instant case, the court concludes that Fidelifacts obtained plaintiff’s report under false pretenses. As noted, that is prohibited by § 1681q, and, if willful, may be penalized under § 1681n. The court concludes that Fidelifacts’ violation of 1681q was willful, as Mr. Berbit knew of the purpose for acquiring the report, and knew it had nothing to do with granting credit to plaintiff, yet obtained the report from TRW without disclosing his purpose to TRW. Liability of TRW Fidelifacts certified to TRW that it would only request reports for legitimate credit purposes. Given the high volume of credit requests that TRW must respond to each day, and the importance of a speedy response, the court concludes that it would be impractical to require TRW to verify the purpose for each credit report. By requiring its subscribers to certify the purpose for reports in advance, TRW reasonably strikes a balance between the conflicting goals of protecting the privacy rights of consumers and promoting an efficient credit economy. At least in the context of this case, where Fidelifacts is primarily in the business of requesting reports for proper purposes (employment) and there was no showing that TRW knew of the improper purpose for the report issued as to plaintiff, the court concludes that TRW’s release of plaintiff’s report was not in violation of the Act. In short, Fidelifacts’ primary business purpose and its certification to TRW constituted sufficient “reason to believe” on the part of TRW that Fidelifacts had a legitimate business need for the report requested. Damages 15 U.S.C. § 1681n provides as follows: Any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under this sub-chapter with respect to" }, { "docid": "23400573", "title": "", "text": "1681q. CIVIL LIABILITY The Credit Union and Ryan were “user[s] of information” obtained from CBI, “a consumer reporting agency.” See 15 U.S.C. § 1681a(f) and § 1681n. See discussion infra at 973-974. As such, if either the Credit Union or Ryan “willfully fail[ed] to comply with any requirement imposed” by the FCRA, each is liable to the “consumer” — in these cases Yohay — for actual and punitive damages as well as costs and attorney’s fees. See 15 U.S.C. § 1681n. Pursuant to section 1681b, in the absence of a court order, see 15 U.S.C. § 1681b(l), or written instructions from the consumer, Yohay, see 15 U.S.C. § 1681b(2), or any of the grounds set forth in section 1681b(3)(A-E), inclusive, CBI could not lawfully provide either the Credit Union or Ryan with the information regarding Yo-hay. In Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 697 (10th Cir.1980), the Tenth Circuit has taken the position that a person such as Ryan — who, as the district court concluded herein before trial in the context of undisputed facts, obtained from CBI the consumer report in question for purposes not permitted by section 1681b— could not be held civilly liable under section 1681b. Herein, we need not reach that issue because of the view we take with respect to section 1681q. In Hansen v. Morgan, 582 F.2d 1214, 1216 (9th Cir.1978), the Ninth Circuit incorporated the criminal provisions of section 1681q into sections 1681n and 1681o and held that a user who obtains a consumer report under false pretenses, as those words are used in section 1681q, can be civilly liable under either section 1681n or section I68I0. In Hansen, Judge Carter wrote that “[t]he standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enu merated in 15 U.S.C. § 1681b,” id. at 1219 (footnote omitted), “that obtaining a consumer report ... without disclosing the impermissible purpose for which the report is desired can constitute obtaining consumer information under false pretenses," }, { "docid": "3012882", "title": "", "text": "accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter. The principle vehicle for accomplishing this goal was the enumeration of permissible circumstances under which consumer reporting agencies (CRAs) could furnish confidential consumer reports. Section § 1681b(a) contains the exclusive list of permissible purposes, including employment prescreening, § 1681b(a)(3)(B); responses to a court order, § 1681b(a)(l); compliance with the written instructions of the consumer, § 1681b(a)(2); and where the user has a “legitimate business need in connection with a business transaction that is initiated by the consumer,” § 1681b(a)(3)(F)(i). Litigation under this section has focused on the credit agency’s knowledge as to whether the requesting party sought the information for permissible purposes. See, e.g., Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 696 (10th Cir.1980) (finding that judicial inquiry into credit reporting agency motives was necessary component of § 1681b analysis, and holding that union member stated claim for relief against credit bureau on theory that it had delivered consumer report knowing that union had requested report for the impermissible purpose of humiliating its member). The FCRA also created civil liability for both negligent and willful violations of the Act, § 1681n-o, and provided a criminal penalty not to exceed $5000, one-year imprisonment, or both, for persons who obtain consumer information under false pretenses, § 1681q. Notwithstanding these initial restrictions, rapidly evolving computer technology and an explosion in available consumer credit over the past two decades contributed to what one member of Congress referred to as an “Orwellian nightmare of erroneous and unknowingly disseminated credit reports” (140 Cong. Rec. H9797-05, H9810 (statement of Rep. Kennedy)). Thus, after much congressional debate and input from both consumer advocates and the credit industry, Congress passed the Consumer Credit Reporting Reform Act of 1996 (Reform Act) “to improve both the accuracy and privacy of consumer reports” {id.; Title II, Subtitle D, Chapter 1, of the Omnibus Consolidated Appropriations Act for Fiscal Year 1997, Pub.L.No.104-208, 110 Stat. 3009-426 (enacted Sept. 30, 1996; effective Sept. 30, 1997), codified as amended at 15 U.S.C. § 1681 et seq). The" }, { "docid": "23400574", "title": "", "text": "context of undisputed facts, obtained from CBI the consumer report in question for purposes not permitted by section 1681b— could not be held civilly liable under section 1681b. Herein, we need not reach that issue because of the view we take with respect to section 1681q. In Hansen v. Morgan, 582 F.2d 1214, 1216 (9th Cir.1978), the Ninth Circuit incorporated the criminal provisions of section 1681q into sections 1681n and 1681o and held that a user who obtains a consumer report under false pretenses, as those words are used in section 1681q, can be civilly liable under either section 1681n or section I68I0. In Hansen, Judge Carter wrote that “[t]he standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enu merated in 15 U.S.C. § 1681b,” id. at 1219 (footnote omitted), “that obtaining a consumer report ... without disclosing the impermissible purpose for which the report is desired can constitute obtaining consumer information under false pretenses, and that the facts in this case demonstrate that the consumer report was so obtained.” Id. at 1219-20 (footnote omitted). We agree with and accordingly adopt the reasoning of the Ninth Circuit in Hansen, and also conclude that the facts in these cases before us disclose that the report was obtained under false pretenses. Accordingly, each of the two users — the Credit Union and Ryan — is subject to civil liability under section 1681n if each user’s individual non-compliance with section 1681b was willful. In the within cases the record shows that Ryan obtained the report from CBI, as the district court found before trial, for “a purpose not permitted by” the FCRA and also without in any way disclosing to CBI the impermissible purpose for which she sought the report. The trial record discloses more than sufficient evidence to support the jury’s implicit conclusion that the Credit Union acted willfully. For example, the evidence of the friendly relationship between the manager of the Credit Union, Filopovich, and Ryan and her second husband, Justice," }, { "docid": "12483850", "title": "", "text": "of the Act. Neither section 1681(a) nor section 1681a contain provisions that create liability under the FCRA. In addition, Philip Morris, as an alleged “user” of consumer information, is incapable of violating section 1681b of the Act. Section 1681b does not impose a duty upon a user to obtain written permission from a consumer prior to requesting a report from a consumer reporting agency. Next, defendant allegedly made false and fraudulent representations to Equifax, Inc. in order to procure a consumer report in violation of section 1681b. Compl. ¶ 88-90, 96. The Act does create liability for users who obtain a credit report under false pretenses for an impermissible purpose. See 15 U.S.C.A. § 1681q. “Whether a consumer report has been obtained under false pretenses will ordinarily be determined by reference to the permissible purposes for which consumer reports may be obtained, as enumerated in § 1681b.” Zamora v. Valley Fed. Sav. & Loan Ass’n, 811 F.2d 1368, 1370 (10th Cir.1987) (citing Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.1978); Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982)). In this case, plaintiff insists that defendant fraudulently acquired a consumer report under the guise of requiring the report for “employment purposes,” when in actuality Philip Morris solicited the report in order to terminate Mr. Wiggins. Compl. ¶ 89-90. However, “[t]he term ‘employment purposes’ when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” 15 U.S.C.A. § 1681a(h) (emphasis added). Under the Act, Philip Morris is entitled to obtain a consumer report relating to its employee for the purpose of determining whether to discharge him. Third, plaintiff asserts that defendant “had a duty to furnish any and all consumer reports to him prior to his suspension from his employment on February 9, 1990.” Compl. ¶ 95. Under section 1681m(a), “[w]henever ... employment involving a consumer is denied ... either wholly or partly because of information contained in a consumer report from a consumer reporting agency, the user ... shall so advise" }, { "docid": "16784200", "title": "", "text": "TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982). A consumer reporting agency may only issue a report for the purposes listed in § 1681b. Hansen, 582 F.2d at 1219. Accordingly, if a user requests information for a purpose not permitted by § 1681b while representing to the reporting agency that the report will be used for a permissible purpose, the user may be subject to civil liability for obtaining information under false pretenses. Id. at 1219-20. In this case defendant’s vice president, William P. Inscho, Jr., informed the credit agency it sought information on plaintiff for “employment purposes.” A credit bureau employee testified that he would not have provided defendant the credit report had he known defendant’s actual purpose for seeking the report. But defendant appears to further contend that civil liability should not be imposed, because defendant did not knowingly and willfully seek information not permitted under the FRCA. This contention must also fail. The testimony at trial indicated that both Inscho, Jr. and another vice-president of the bank, William P. Inscho, Sr., knew the permissible purposes for obtaining consumer reports. Both are vice-presidents of defendant, a savings and loan which does frequent consumer checks and which has a compliance officer, an in-house attorney, to ensure compliance with federal statutes, such as the FCRA. Previously Inscho, Sr. had owned and Inscho, Jr. had worked at the credit bureau. Inscho, Jr. trained employees on making credit report requests at one of defendant’s branches. The credit bureau employee testified that all credit bureau employees knew they could not access the records of a spouse when checking the credit of an individual. Plaintiff’s wife, who was one of defendant’s loan officers, testified that a credit report could not be obtained on a spouse if the spouse was not listed on the loan application. She testified that Inscho, Sr. admitted to her that the request was a mistake and attempted to rectify the mistake by offering her a bottle of wine. From this evidence the jury could reasonably find that defendant knowingly and willfully obtained the consumer report under false pretenses. Because the" }, { "docid": "537133", "title": "", "text": "purposes, and there was no showing that the consumer reporting agency had notice of subscriber’s improper purpose for accessing plaintiffs report); Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982) (finding that “Fidelifacts’ primary business purpose [employment] and its certification to TRW constituted sufficient ‘reason to believe’ on the part of TRW that Fidelifacts had a legitimate business need for the report requested”); Klapper v. Shapiro, 154 Misc.2d 459, 586 N.Y.S.2d 846, 850 (N.Y.Sup.Ct.1992) (finding that credit reporting agency had “reason to believe” credit information was being accessed for permissible purposes based on subscriber’s certification and business purpose and stating: “That TRW issued the report in response to a seemingly legitimate request is insufficient to impose liability on TRW for an unauthorized and improper request by an otherwise legitimate subscriber who certified that credit reports would only be obtained for permissible purposes. Rather, it is the user of the consumer credit profile report who is cast in liability for obtaining the report under false pretenses and using it for an impermissible purpose.”). Under this analysis, it is clear that ChoicePoint had “reason to believe” that NameSeeker intended to use Plaintiffs information for a permissible purpose. ChoicePoint points to several certifications that created a “reason to believe” NameSeeker would use the information for a permissible purpose. NameSeeker certified in its membership agreement with Experian that it would extend firm offers to every consumer whose name appeared on prescreened lists NameSeeker obtained from ChoicePoint. (Def.’s Mem. Ex. 6 ¶ 4.D.) In NameSeeker’s Marketing Services Agreement with ChoicePoint, NameSeeker certified that its usage would “comply in all respects with all applicable Federal, state and local laws, regulations and rules.” (Def.’s Mem. Ex. 7 ¶ 7.) While ChoicePoint contends that NameSeeker’s certifications alone created a “reason to believe,” ChoicePoint claims that it had further reason to believe the data would be used for a permissible purpose based on the certifications provided in DMMI and AccuData’s Third Party Processor Agreements with Experian. (Def.’s Mem. 20.) In addition to the certifications, Name-Seeker’s legitimate business purpose further supports ChoicePoint’s argument that it had reason to believe" }, { "docid": "537132", "title": "", "text": "with a firm offer of credit.”). In other words, “[i]f the consumer reporting agency has reason to believe that the user had a permissible purpose in obtaining the report, there is no FCRA violation.” Greenhouse v. TRW, Inc., Civ. A. 96-1495, 1998 WL 61037, at *2 (E.D.La. Feb. 13, 1998) (unpublished) (citing Korotki v. Att’y Servs. Corp., 931 F.Supp. 1269, 1276 (D.Md.1996)) (emphasis added). In interpreting Section 1681b, courts have found that a consumer reporting agency had “reason to believe” that consumer reports were being accessed for a permissible purpose when the subscriber had certified such limited usage, the primary purpose of the subscriber’s business involved accessing reports for a permissible purpose, and the agency was unaware of any impermissible use by the subscriber. See, e.g., Wilson v. Sessoms, Civil No. 4:96CV01031, 1998 U.S. Dist. LEXIS 8154, at *12-13 (M.D.N.C. Mar. 16, 1998) (unpublished) (granting summary judgment in favor of consumer reporting agency where subscriber had certified that it would access consumer reports for permissible purposes, subscriber’s primary business (skip-tracing) involved accessing reports for permissible purposes, and there was no showing that the consumer reporting agency had notice of subscriber’s improper purpose for accessing plaintiffs report); Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982) (finding that “Fidelifacts’ primary business purpose [employment] and its certification to TRW constituted sufficient ‘reason to believe’ on the part of TRW that Fidelifacts had a legitimate business need for the report requested”); Klapper v. Shapiro, 154 Misc.2d 459, 586 N.Y.S.2d 846, 850 (N.Y.Sup.Ct.1992) (finding that credit reporting agency had “reason to believe” credit information was being accessed for permissible purposes based on subscriber’s certification and business purpose and stating: “That TRW issued the report in response to a seemingly legitimate request is insufficient to impose liability on TRW for an unauthorized and improper request by an otherwise legitimate subscriber who certified that credit reports would only be obtained for permissible purposes. Rather, it is the user of the consumer credit profile report who is cast in liability for obtaining the report under false pretenses and using it for an impermissible purpose.”). Under this" }, { "docid": "18829473", "title": "", "text": "provides civil liability for “any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under [the Act] with respect to any consumer.” This provision, among other things, “authorizes a civil remedy against a user of a credit report who fails to comply with the act’s criminal provision.” Hansen v. Morgan, 582 F.2d at 1216; see Rice v. Montgomery Ward & Co., 450 F.Supp. 668 (M.D.N.C.1978). In short, a user who acquires the credit report under false pretenses is liable to the consumer as well as subject to potential criminal penalties. Hansen v. Morgan, 582 F.2d at 1216. The term “user” refers not only to the ultimate destination of a credit report but also encompasses the person who acquires it for another. Hansen v. Morgan, 582 F.2d 1214. Thus, Fidelifacts is properly considered a user, and is civilly liable to plaintiff because it acquired his credit report under false pretenses. “Obtaining a consumer report in violation of the terms of the statute without disclosing the immpermissible (sic) purpose for which the report is desired can constitute obtaining consumer information under false pretenses.” Hansen v. Morgan, 582 F.2d at 1219-20. Fidelifacts acquired plaintiff’s report for an impermissible purpose. It did not disclose that impermissible purpose to TRW. As Fidelifacts certified that it would only request reports in connection with a credit transaction involving the consumer and there was no such credit transaction in the instant case, the court concludes that Fidelifacts obtained plaintiff’s report under false pretenses. As noted, that is prohibited by § 1681q, and, if willful, may be penalized under § 1681n. The court concludes that Fidelifacts’ violation of 1681q was willful, as Mr. Berbit knew of the purpose for acquiring the report, and knew it had nothing to do with granting credit to plaintiff, yet obtained the report from TRW without disclosing his purpose to TRW. Liability of TRW Fidelifacts certified to TRW that it would only request reports for legitimate credit purposes. Given the high volume of credit requests that TRW must respond to each day, and the importance of a" } ]

[ { "docid": "22369074", "title": "", "text": "step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768. On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U. S. 352, 364-366 (1991) (plurality opinion) (holding that evaluation of a prosecutor’s credibility “lies ‘peculiarly within a trial judge’s province’ ”). Under AEDPA, however, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. § 2254(d)(2). Thus, a federal habeas court can only grant Collins’ petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. State-court factual findings, more over, are presumed correct; the petitioner has the burden of rebutting the presumption by “clear and convincing evidence.” § 2254(e)(1). See Miller-El v. Dretke, 545 U. S. 231, 240 (2005). Although the Ninth Circuit assumed § 2254(e)(1)’s presumption applied in this case, 365 F. 3d, at 677, the parties disagree about whether and when it does. We need not address that question. Even assuming, argu-endo, that only § 2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court. Because the California Court of Appeal accepted the trial court’s credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See id., at 682. The panel majority’s analysis and conclusions, however, depended entirely on its view of the trial court’s credibility holding. The panel majority found no error in the trial court’s proceedings or rulings in the first two steps of the Batson inquiry. 365 F. 3d, at 677-678. It disagreed, however, with the trial court’s conclusions on the third step, holding that it was unreasonable to accept the prosecutor’s explanation that Juror 16 was excused on account of her youth and her" } ]

[ { "docid": "9944089", "title": "", "text": "peremptory challenges, not only to Spanish male persons, but a person who expressed belief that oppression of women through domestic abuse is a national problem.” Id. When the prosecution indicated later that it would use another peremptory strike against potential juror Rich Lehl, a Caucasian male, defense counsel objected that the prosecution was “trying to sanitize the jury as to — his interest is to systematically exclude all people who have battering experiences.” Id. at 144. The prosecution was not permitted to explain its reason for the peremptory strike. A. Standard of Review Under the AEDPA, if a claim has been adjudicated on the merits in state court, we may only grant federal habeas relief if the habeas petitioner can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004). The AEDPA also mandates that state court factual findings are presumptively correct and may be rebutted only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir.2004). “The disposition of a Batson claim is a question of fact subjected to the standard enunciated in 28 U.S.C. § 2254(d)(2).” Sallahdin v. Gibson, 275 F.3d 1211, 1225 (10th Cir.2002); see also Weaver v. Bowersox, 241 F.3d 1024, 1029-31 (8th Cir.2001); Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir.1995) . (“The . ultimate question of whether [petitioner] has established purposeful discrimination in violation of Bat-son is a question of fact subject to deferential review.”). When applying these deferential standards in eases involving a state-court summary disposition, we focus on the result of the state court decision, not its reasoning. “[W]e defer to the [state appellate court’s] decision unless we conclude that its" }, { "docid": "14740009", "title": "", "text": "or a three, or a three or a four.” We have no Rosetta Stone to unlock the meaning of the fourth X; it is a mistake to order a new trial based on this speculative foundation as to a single juror. I. Batson Step One — Crediting the Trial Court’s Factual Finding Under Batson step one, Crittenden must “show[] that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94, 106 S.Ct. 1712. The state trial court found that Crittenden did not meet this standard. Under both the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and Batson principles, overturning such a finding requires “exceptional circumstances.” Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 2201, 192 L.Ed.2d 323 (2015) (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)). Because there is nothing amiss about the trial court’s finding — much less exceptionally wrong — that conclusion should have ended the matter. Instead, the majority second-guesses the fact-bound decision of the state' trial judge with a raft of new evidence introduced in federal habeas proceedings. I dissent from this upside-down approach to deference. The starting point is AEDPA, 28 U.S.C. § 2254(e)(1), under which the trial court’s factual finding is “presumed correct” and Crittenden “has the burden of rebutting that presumption by ‘clear and convincing evidence.’ ” Ayala, 135 S.Ct. at 2199-2200 (quoting Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). In light of AEDPA’s mandate, “we normally review the state trial court’s fact-specific determination of whether a defendant has made a prima facie case of a Batson violation deferentially, applying AEDPA’s ‘statutory presumption of correctness.’ ” Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.2002) (quoting Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir.2000)). In contrast, “where the trial court has applied the wrong legal standard, AEDPA’s rule of deference does not apply.” Id.; see also Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.2001). Nothing reflects that the trial court applied the wrong legal standard" }, { "docid": "958465", "title": "", "text": "is extremely fact intensive. Because of the importance of demeanor and credibility evidence in making such determinations, this step of the analysis should lie solely in the province of the trial judge. Id. Indeed, it is at this stage that the persuasiveness of a prosecutor’s explanation becomes relevant. Accordingly, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id. 1. Texas Trial Court As stated, “[u]nder the AEDPA deference scheme, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of facts are reviewed under § 2254(d)(2).” Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999). Accordingly, Moody is not entitled to habeas relief unless the state court’s decision is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). Further, a state court’s factual findings are presumed to be correct unless contravened by clear and convincing evidence. § 2254(e)(1). With this standard of deference in mind, we consider Moody’s equal protection claim. From our review of the record, it is patently clear that the state trial court’s ruling was contrary to clearly established Supreme Court law. The trial court did not even consider Moody’s request for a Batson hearing because it incorrectly concluded that Moody had no standing to challenge the prosecution’s exclusion of Hightower. As noted above, the Supreme Court has held that defendants have standing to raise a prospective juror’s equal protection claim by way of a Batson challenge, even if the prospective juror is of a different race. Powers, 499 U.S. at 415, 111 S.Ct. 1364. Because of the trial court’s erroneous ruling in contravention of Powers, it did not broach the three-step analysis required to evaluate a defendant’s Batson challenge. Given the Supreme Court’s holding in Powers, we find that the state trial court’s ruling was an unreasonable application of clearly-established Supreme Court law. As to AEDPA’s requirement that this court defer to the state trial court’s findings of fact, this directive is not applicable as to this state" }, { "docid": "19531960", "title": "", "text": "answers to questions 30, 34, and 35. Otherwise, he would not have accepted Cooper who had the same answers the prosecution did not like. The perfect match among the answers of these jurors means that even more than in the other cases that have found pretext based on a comparative juror analysis, \"[t]he prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny.\" Miller-El II , 545 U.S. at 265, 125 S.Ct. 2317 ; Snyder , 552 U.S. at 485, 128 S.Ct. 1203 (\"The prosecution's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent.\"); Reed , 555 F.3d at 380-81 (\"[T]he comparative analysis demonstrates what was really going on: the prosecution used its peremptory challenges to ensure that African-Americans would not serve on Reed's jury.\"). B. How does the majority opinion try to avoid the implication of pretext that is stronger in this case than those in which the Supreme Court and our court have used comparative analysis to find Batson violations? It first does so by invoking AEDPA deference. That deference is substantial in allowing a federal court to grant postconviction relief only if the state court's rejection of the claim \"was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.\" 28 U.S.C. § 2254(d)(2). And a state court's factual findings are presumed to be sound unless the petitioner rebuts the \"presumption of correctness by clear and convincing evidence.\" 28 U.S.C. § 2254(e)(1). \"The standard is demanding but not insatiable; ... '[d]eference does not by definition preclude relief.' \" Miller-El II , 545 U.S. at 240, 125 S.Ct. 2317 (quoting Miller-El I , 537 U.S. at 340, 123 S.Ct. 1029 ). And in Miller-El II and Reed , comparative juror analysis less compelling than the identical comparison in this case helped meet that standard. See id . at 240, 266, 125 S.Ct. 2317 (granting relief under section 2254(d)(2)" }, { "docid": "15081821", "title": "", "text": "at 1107-08 (citing Van Tran, 212 F.3d at 1153-54). To grant relief under § 2254(d)(2), a federal court must be “left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct.” Id. at 1108 (quoting Van Tran, 212 F.3d at 1153-54) (internal quotation marks omitted). A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir.2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(l)’s presumption of correctness; conclusory assertions will not do. Id. B. Issues Presented 1. Batson issue a. Standard The use of peremptory challenges by either the prosecution or defendant to exclude cognizable groups from a petit jury may violate the Equal Protection Clause. Georgia v. McCollum, 505 U.S. 42, 55-56, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson sets up a three-step process for a trial court’s ruling on objections to peremptory challenges which the defendant asserts are racially motivated. First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Id. at 96-97, 106 S.Ct. 1712. Second, if the requisite showing is made, the prosecutor must articulate a race-neutral explanation for striking the jurors in question. Id. at 97-98, 106 S.Ct. 1712. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. Id. at 98, 106 S.Ct. 1712. In evaluating the race or gender neutrality explanation, the court must keep in mind that proof of discriminatory intent or purpose is" }, { "docid": "19531961", "title": "", "text": "than those in which the Supreme Court and our court have used comparative analysis to find Batson violations? It first does so by invoking AEDPA deference. That deference is substantial in allowing a federal court to grant postconviction relief only if the state court's rejection of the claim \"was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.\" 28 U.S.C. § 2254(d)(2). And a state court's factual findings are presumed to be sound unless the petitioner rebuts the \"presumption of correctness by clear and convincing evidence.\" 28 U.S.C. § 2254(e)(1). \"The standard is demanding but not insatiable; ... '[d]eference does not by definition preclude relief.' \" Miller-El II , 545 U.S. at 240, 125 S.Ct. 2317 (quoting Miller-El I , 537 U.S. at 340, 123 S.Ct. 1029 ). And in Miller-El II and Reed , comparative juror analysis less compelling than the identical comparison in this case helped meet that standard. See id . at 240, 266, 125 S.Ct. 2317 (granting relief under section 2254(d)(2) ); Reed , 555 F.3d at 372-73 (same). Indeed, courts have issued writs under AEDPA relying solely on comparative juror analysis to find a Batson violation. Hayes , 361 Fed.Appx. at 573 ; see also Drain v. Woods , 595 Fed.Appx. 558, 571-81 (6th Cir. 2014) (granting writ by finding a Batson violation relying only on a comparative juror analysis); cf. United States v. Taylor , 636 F.3d 901, 906 (7th Cir. 2011) (Sykes, J.) (relying on striking comparative juror analysis to find discrimination under the also deferential \"clearly erroneous\" standard that governs review of federal trial court rulings). Here the damning comparative juror analysis does not stand alone. It is reinforced by the pattern of overall strikes, which makes it highly unlikely as a statistical matter that the disproportionate striking of black jurors was \"mere happenstance.\" Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317. There is also the absence of follow-up questions about the responses that supposedly motivated the prosecutor's strikes of Sturgis and Minor that one would expect if those were" }, { "docid": "11864603", "title": "", "text": "suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike.” Rice v. Collins, 546 U.S. 333, 338,126 S.Ct. 969,163 L.Ed.2d 824 (2006) (citations omitted). The parties do not dispute that Bond made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race or that the prosecutor gave a race-neutral explanation for the challenge. The dispute thus turns on whether Bond carries his burden of proving purposeful discrimination. The burden at this step three is tó show that it is more likely than not that the prosecutor struck at least one juror because of race. See Wilson v. Beard, 426 F.3d 653, 670 (3d Cir.2005). At step three, “the trial judge must make a finding regarding the [prosecutor’s] motivation.” Bronshtein v. Horn, 404 F.3d 700, 723 (3d Cir.2005). b. Standard of Review for Habeas Petitions [3] We first address the threshold question of whether to apply the deferential AEDPA standard of review. The Commonwealth would have us answer that question “yes.” Bond disagrees and asks us to apply a de novo standard of review. Their dispute centers on whether the state courts reached the third part of the Bat-son analysis and resolved it on the merits. If the state courts performed a step-three analysis and made a finding about the prosecutor’s intent, that finding is presumed correct, see 28 U.S.C. § 2254(e)(1), and Bond is entitled to relief only if (1) the state court decision was “contrary to,” or involved an “unreasonable application” of, Supreme Court precedent, id. § 2254(d)(1); or (2) the finding was unreasonable in light of the record before the state court, id. § 2254(d)(2); or (3) Bond rebutted that finding with clear and convincing evidence in the District Court, id. § 2254(e)(1). Failure to make a step-three finding, on the other hand, would render the state court’s decision either “contrary to” or" }, { "docid": "14739971", "title": "", "text": "evidence We also reject the state’s contention that Crittenden I failed to afford a presumption of correctness under 28 U.S.C. § 2254(e)(1) to the state trial court’s finding that Crittenden did not establish a prima facie violation at Batson step one. We said in Crittenden I that “[w]e presume the state court’s factual findings to be correct, a presumption the petitioner has the burden of rebutting by clear and convincing evidence.” 624 F.3d at 950. The district court found, and Crit-tenden I affirmed, that Crittenden rebutted that presumption as to the Batson step one finding. His clear and convincing evidence included that the crime was racial in nature, Casey was the only African-American juror in the venire and the only juror subject to a meritless fof-cause challenge, and there was a disparity between the prosecutor’s rating of Casey and his ratings of comparable white jurors. That ratings disparity, discussed in further detail below, is new evidence not presented to the state trial court. We disagree with the dissent that Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011), precludes Crittenden I’ s consideration of that new ratings evidence to rebut the trial court’s factual finding at Batson step one. Pinholster precludes the consideration of new evidence only for the purpose of determining whether the last reasoned state court decision was contrary to or an unreasonable application of clearly established law or an unreasonable determination of the facts under 28 U.S.C. § 2254(d). See Pinholster, 131 S.Ct. at 1398 (“We now hold that review under § 2254(d)(1) is limited to the record that was before the state court....”). We have since clarified — after Pinholster and the cases cited in the dissent — “If we determine, considering only the evidence before the state court,” the petitioner has satisfied § 2254(d), “we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.2014) (citing Pinholster, 131 S.Ct. at 1401); see also Johnson v. Finn, 665 F.3d 1063, 1069 n. 1" }, { "docid": "2724000", "title": "", "text": "the United States”; or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). Thus, AEDPA erects “ ‘a substantially higher threshold’ for obtaining relief than de novo review.” Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly,” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); relief instead requires a determination that the state court’s application was unreasonable, Renico, — U.S.-, 130 S.Ct. at 1862. In addition, AEDPA endows a state tribunal’s findings of fact with a “presumption of correctness,” and this presumption extends “to the factual determinations of state trial and appellate courts.” Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.2001) (citing 28 U.S.C. § 2254(e)(1) and Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996)). To overcome the presumption, a habeas petitioner must proffer clear and convincing evidence to show that a factual determination is “objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Our review proceeds under this AEDPA rubric. A Batson Claim Williams, who is an African American male, argues that the Commonwealth’s use of peremptory challenges during jury selection violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) . In Batson, the Supreme Court held that deliberate or purposeful exclusion of African Americans from jury service violates the Equal Protection Clause. Batson, 476 U.S. at 84, 106 S.Ct. 1712. The decision set forth a three-step procedure for evaluating claims of discrimination in the jury selection process: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has" }, { "docid": "18225039", "title": "", "text": "n. 21. A federal habeas court must “presume the [state] court’s factual findings to be sound unless [the petitioner] rebuts the ‘presumption of correctness by clear and convincing evidence.’” Miller-El II, 545 U.S. at 240, 125 S.Ct at 2325 (quoting 28 U.S.C. § 2254(e)(1)). But with respect to a Bat-son claim in particular, the Supreme Court has stated: Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. [A Bat-son claim] ... can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. It goes without saying that this includes the facts and circumstances that were adduced in support of the prima facie ease. Miller-El I, 537 U.S. at 340, 123 S.Ct. at 1041. A. The State Court’s Application of Batson and Determination of the Facts Our review of the state court record leads us to conclude that the Alabama Court of Criminal Appeals unreasonably applied Batson’s third step when it failed to consider all relevant circumstances bearing on whether Mr. Adkins established purposeful discrimination. “Because courts must weigh the defendant’s evidence [of purposeful discrimination] against the prosecutor’s articulation of a ‘neutral explanation,’ courts are directed by Batson to consider ‘all relevant circumstances’ in the third step of the Batson analysis.” McGahee, 560 F.3d at 1261. Failure to do so is an unreasonable application of Batson within the meaning of § 2254(d)(1). See id. at 1261-62. In Adkins IV, after reciting the procedural history of the case, the Alabama Court of Criminal Appeals implicitly turned to Batson’s first step and stated: The trial court’s findings show that the state struck 9 of the 11 black prospective jurors on the venire. One black ultimately sat on the jury. The court found that a prima facie showing of discrimination had been" }, { "docid": "10857700", "title": "", "text": "The district court granted a COA for Stevens’s claim that the prosecutor peremptorily struck a black prospective juror because of her race. Purposeful racial discrimination in the use of peremptory strikes of prospective jurors violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson claims are evaluated using a three-step analysis: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citations omitted). “[I]n considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (citing Miller-El v. Dretke (MillerEl II), 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)). Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), this court may grant habeas relief on a claim adjudicated on the merits in state court only if the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(l)-(2). The state court’s factual findings are presumed to be correct, unless the petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The State used six of its twelve peremptory challenges. Two were used to strike black prospective jurors and four were used to strike white prospective jurors. The jury that was selected consisted of eleven white persons" }, { "docid": "11864604", "title": "", "text": "Review for Habeas Petitions [3] We first address the threshold question of whether to apply the deferential AEDPA standard of review. The Commonwealth would have us answer that question “yes.” Bond disagrees and asks us to apply a de novo standard of review. Their dispute centers on whether the state courts reached the third part of the Bat-son analysis and resolved it on the merits. If the state courts performed a step-three analysis and made a finding about the prosecutor’s intent, that finding is presumed correct, see 28 U.S.C. § 2254(e)(1), and Bond is entitled to relief only if (1) the state court decision was “contrary to,” or involved an “unreasonable application” of, Supreme Court precedent, id. § 2254(d)(1); or (2) the finding was unreasonable in light of the record before the state court, id. § 2254(d)(2); or (3) Bond rebutted that finding with clear and convincing evidence in the District Court, id. § 2254(e)(1). Failure to make a step-three finding, on the other hand, would render the state court’s decision either “contrary to” or an “unreasonable application” of Batson, see, e.g., Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir.2004), and we would not apply AEDPA deference. We would review the issue de novo with the exception that we would review relevant factual findings made by the District Court for clear error. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.2002). (i) Relevant Background The issue of race first arose at voir dire when the prosecutor complained about de fense counsel’s strikes of white venireper-sons. The trial court rejected the prosecutor’s complaint, noting instead that it was concerned about his (the prosecutor’s) actions because he had stricken four of the five black venirepersons he had an opportunity to accept. Defense counsel raised their first Bat-son challenge after the prosecutor struck the next black member of the jury pool. The court noted that the prosecutor had stricken five of six black venirepersons, but only three of their 15 white counterparts, and that “there’s clearly a propensity on the Commonwealth to strike black jurors.” At defense counsel’s urging, the court" }, { "docid": "16448238", "title": "", "text": "(1991) (plurality opinion)). If a race-neutral reason is not given, the conviction must be reversed. Batson, 476 U.S. at 100, 106 S.Ct. 1712. If a race-neutral reason is given, however, then the court must go to the third step to determine whether the opponent of the challenge has proven purposeful discrimination. Id., at 98, 106 S.Ct. 1712. “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769. The State habeas court determined that Weddell made out a prima facie case of purposeful discrimination. See Weddell, 604 N.W.2d at 283 (adopting decision on Batson issue from Honomichl, 498 N.W.2d at 638-39, in which the State habeas court found that Honomichl established a prima facie case and the State did not challenge that finding on appeal). The Eighth Circuit explained that a State trial court’s and State habeas court’s resolution of a Batson issue is a factual determination subject to the statutory presumption of correctness set forth in 28 U.S.C. § 2254(e)(1), which a habeas petitioner must rebut by clear and convincing evidence to prevail. See Weaver v. Bowersox, 241 F.3d 1024, 1030-32 (8th Cir.2001). Thus, the finding that Weddell established a prima facie case is a factual determination subject to the presumption of correctness set forth in 28 U.S.C. § 2254(e)(1). A defendant can establish a prima facie case under Batson by showing (1) that he is a member of a cognizable racial group, (2) that the challenged juror is a member of the same racial group, and (3) that the relevant circumstances of voir dire support an inference of discriminatory purpose. See United States v. Moreno, 217 F.3d 592, 594 (8th Cir.2000) (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). In this case, Weddell and Honomichl were both Native Americans, as was Ella Huapapi, the juror at issue. The case involved the alleged attack by Weddell and Honomichl on a white man in Charles Mix County, South Dakota. Ultimately, there were no Native Americans on the jury. The prosecutor, Gary Conk-lin, exercised" }, { "docid": "12767102", "title": "", "text": "the “record” for purposes of § 2254(d)(2). We need not resolve the issue, however, because the evidence of the conviction does not suffice to afford Defendant relief. The question before us is whether the prosecution’s failure to strike a white juror despite his not disclosing a prior misdemeanor conviction would establish by clear and convincing evidence that the prosecutor’s challenge to the prospective African-American juror was racially motivated. The answer is No. To be sure, the evidence concerning the selected white juror raises suspicion. Whenever the prosecutor’s explanation for striking a minority juror would also apply to a white juror who was not struck, the explanation loses some credibility. But a prospective white juror with a “belatedly disclosed” prior misdemeanor conviction had been struck, suggesting that the explanation for striking the African-American prospective juror had also been applied to a white man. As the OCCA wrote, “Batson is not violated “whenever prospective jurors of different races provide similar responses and one is excused while the other is not.’” IcL at 1062 n. 10 (quoting Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.1994)). The significance of a failure to disclose a prior conviction may depend on the nature of the offense and how long ago it had occurred. And other (nonracial) characteristics of the prospective juror may outweigh the failure. Here, the misdemeanor conviction of the white juror had been for impaired driving (a charge reduced from driving while intoxicated) 17 years before Defendant’s trial, and the penalty had been only a $100 fine; but the African-American’s arrest had been about two years before Defendant’s trial. The limited evidence of the prosecution’s racial motivation here is far less than what is required to overturn a state trial court’s Batson ruling on habeas review. Even on direct review, without the deference required by AEDPA, the Supreme Court stated that a reviewing court must defer to the state trial judge’s finding of no racial motivation “in the absence of exceptional circumstances.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks omitted). The only Supreme" }, { "docid": "14739959", "title": "", "text": "motivated by race for four reasons. First, the prosecutor rated Casey far more negatively than comparable white jurors. Second, Casey was the only prospective juror the prosecutor challenged for cause based on a general objection to the death penalty, and it was well established that such objections did not warrant a for-cause challenge. Third, the prosecutor asked Casey a provocative question regarding the death penalty, and twice used the charged term “gas chamber,” whereas “no other juror was questioned in this manner with use of the same charged term.” Fourth, “even if it is not given great weight, [the prosecutor’s] strike of another black juror in a prior trial suggests that he took account of race in assessing how a juror would vote.” The court granted Crittenden’s petition. The state appeals. STANDARD OF REVIEW We review de novo a district court’s grant of habeas corpus relief. See Gallego v. McDaniel, 124 F.3d 1065, 1069 (9th Cir.1997). A district court’s factual findings in granting a habeas petition are reviewed for clear error. See Fed.R.Civ.P. 52(a)(6); Lambert v. Blodgett, 393 F.3d 948, 964 (9th Cir.2004). At Batson’s first step, whether the defendant has made a prima facie showing is a mixed question of law and fact accorded a presumption of correctness in the habeas context. See Tolbert v. Page, 182 F.3d 677, 681 n. 6, 685 (9th Cir.1999) (en banc) (applying 28 U.S.C. § 2254(e)(1)). At Batson’s third step, it is “settled in this circuit” that “[w]hether the defendant has satisfied the ultimate burden of proving purposeful discrimination is, of course, a question of fact reviewed for clear error.” Id. at 680 n. 5. Notwithstanding this authority, the dissent argues we should review de novo the district court’s factual finding at Batson step three because the district court relied solely on a cold record, rather than testimony before the district judge. That argument is squarely foreclosed by Federal Rule of Civil Procedure 52(a)(6), which says, “[findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous.” (emphasis added). “[I]t is impossible to trace the [dissent’s]" }, { "docid": "3456372", "title": "", "text": "Clause and the right to a fair and impartial jury were violated when the State was granted the shuffle of potential jurors prior to jury selection; and (2) he received ineffective assistance at the sentencing phase. The district court’s legal conclusions are reviewed de novo; its factual findings, for clear error. E.g., United States v. Williams, 264 F.3d 561, 571 (5th Cir.2001). Of course, review is through the strictures imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The federal habeas statute, as amended by AEDPA, requires a great deal of deference to state court proceedings. A federal court may not grant habeas relief to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim [in state court]— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or - (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. ... 28 U.S.C. § 2254(d) (emphasis added). In determining what constitutes an “unreasonable application” of law under § 2254(d)(1), “ ‘[ujnreasonable’ does not mean merely ‘incorrect’: an application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief’. Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002) (emphasis in original) (citing Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)): Any state court factual findings are presumed correct, and the unreasonableness, if any, of such findings must be established by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A. The venire consisted of more than 200 persons. Ladd notes that he is black; the victim, white. Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (peremptory strike to remove potential juror on basis of race violates Fourteenth Amendment), Ladd contends: Batson’s ban on the use of race as a ground for" }, { "docid": "14740010", "title": "", "text": "of the state' trial judge with a raft of new evidence introduced in federal habeas proceedings. I dissent from this upside-down approach to deference. The starting point is AEDPA, 28 U.S.C. § 2254(e)(1), under which the trial court’s factual finding is “presumed correct” and Crittenden “has the burden of rebutting that presumption by ‘clear and convincing evidence.’ ” Ayala, 135 S.Ct. at 2199-2200 (quoting Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). In light of AEDPA’s mandate, “we normally review the state trial court’s fact-specific determination of whether a defendant has made a prima facie case of a Batson violation deferentially, applying AEDPA’s ‘statutory presumption of correctness.’ ” Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.2002) (quoting Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir.2000)). In contrast, “where the trial court has applied the wrong legal standard, AEDPA’s rule of deference does not apply.” Id.; see also Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.2001). Nothing reflects that the trial court applied the wrong legal standard or otherwise erred in its application of Batson step one. Importantly, neither the majority nor Crittenden suggests otherwise. A-though, in 1994, the California Supreme Court conflated Batson’s “reasonable inference” test with Wheeler’s more stringent “strong likelihood” test, see Majority Part II.A, there is no reason to think that the trial judge committed that same mistake five years earlier. Nor can Critten-den summon clear and convincing evidence that the trial court erred in assessing whether there was a prima facie case of purposeful discrimination based on the evidence before the state court. The prima facie determination is a factual inquiry that is “peculiarly within a trial judge’s province,” Ayala, 135 S.Ct. at 2201 (quoting Snyder, 552 U.S at 477, 128 S.Ct. 1203), because the trial judge plays a pivotal role supervising voir dire and is “best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes,” id. See also Tolbert v. Page, 182 F.3d 677, 683 (9th Cir.1999) (en" }, { "docid": "19643867", "title": "", "text": "jurist could agree with the California Supreme Court's decision that this procedure met the Chapmanstandard of harmlessness. Evaluation of these questions requires consideration of the trial court's grounds for rejecting Ayala's Batsonchallenges. A Batsonheld that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. 476 U.S., at 89, 106 S.Ct. 1712. When adjudicating a Batsonclaim, trial courts follow a three-step process: \"First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.\" Snyder v. Louisiana,552 U.S. 472, 476-477 [128 S.Ct. 1203, 170 L.Ed.2d 175] (2008)(internal quotation marks and alterations omitted). The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem,514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)(per curiam), and a trial court finding regarding the credibility of an attorney's explanation of the ground for a peremptory challenge is \"entitled to 'great deference,' \" Felkner v. Jackson,562 U.S. 594, 598, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011)(per curiam) (quoting Batson,476 U.S., at 98, n. 21, 106 S.Ct. 1712). On direct appeal, those findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins,546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). Under AEDPA, even more must be shown. A federal habeas court must accept a state-court finding unless it was based on \"an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.\" § 2254(d)(2). \"State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.' \" Collins, supra,at 338-339, 126 S.Ct. 969(quoting § 2254(e)(1)). In this case, Ayala challenged seven of the prosecution's peremptory challenges. As explained above, the Ninth Circuit granted relief based on" }, { "docid": "4392053", "title": "", "text": "state court proceeding. 28 U.S.C. § 2254(d). “The state court’s application of clearly established law must be objectively unreasonable,” not just incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). We presume the state court’s factual findings to be correct, a presumption the petitioner has the burden of rebutting by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004). We review de novo the district court’s denial of habeas relief, see Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000) (en banc), as well as its grant of summary judgment, see Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). We review de novo the district court’s legal determinations, see Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002), including whether the district court properly applied AEDPA’s standards, see Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). DISCUSSION I. Batson Claim Crittenden is African-American. The victims were a white couple in their late sixties. Crittenden contends that the prosecutor’s peremptory challenge of the only African-American prospective juror was on account of her race in violation of the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm the district court’s conclusion that the California Supreme Court’s resolution of Crittenden’s Batson claim was contrary to clearly established federal law under AEDPA. We also affirm its conclusions at Batson’s first and second steps respectively that Crittenden made a prima facie showing of discrimination and that the state carried its burden of articulating a race-neutral justification for the peremptory strike. On Batson’s third step, however, we vacate the district court’s decision and remand for further proceedings in light of the standard set forth in Cook v. LaMarque, 593 F.3d 810. A. Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire “I don’t like to see anyone put to death.” During voir dire," }, { "docid": "4803484", "title": "", "text": "McLean’s examination of trial counsel at the Rule 37 hearing and by the cases cited in note 5, supra. The district court erred in granting an evidentiary hearing when the mandatory restrictions in 28 U.S.C. § 2254(e)(2) barred a hearing. Accordingly, we must decline to consider the evidence presented at that hearing and review, under AEDPA standards, the state court determination that Williams failed to prove Strickland prejudice on the factual record he developed in state court. On that record, the state court decision was neither contrary to nor an unreasonable application of Strickland. Accordingly, habeas relief on this claim must be denied. See Smith v. Bowersox, 311 F.3d 915, 922 (8th Cir.2002), cert. denied, 540 U.S. 893, 124 S.Ct. 233, 157 L.Ed.2d 168 (2003). III. Batson Challenges On cross-appeal, Williams first argues that the State’s use of peremptory strikes to remove three prospective African American jurors violated Batson v. Kentucky, 476 U.S. 79, 85, 95-96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson mandates a three-step inquiry — did the defendant make a prima facie showing that a strike was racially motivated; if so, did the prosecutor provide a race-neutral reason for the strike; and if so, did the defendant prove purposeful discrimination by showing that the proffered reason was pretextual or unpersuasive. Smulls v. Roper, 535 F.3d 853, 859 (8th Cir.2008) (en banc), cert. denied, - U.S. -, 129 S.Ct. 1905, 173 L.Ed.2d 1061 (2009). The state courts, applying Batson, decided these fact-intensive issues on the merits. Therefore, Williams must establish that the state court rulings were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In resolving this issue, we presume state court fact finding is correct unless Williams presents clear and convincing evidence to the contrary. See id. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Weaver v. Bowersox, 241 F.3d 1024, 1029-31 (8th Cir.2001). At trial, after preliminary screening, thirty-three members of the venire panel were available to be seated, twenty-five whites and" } ]

[ { "docid": "11006308", "title": "", "text": "MINTON, Circuit Judge. Ruth P. Bull recovered judgment in the District Court for the face value of a policy of insurance issued by the defendant, the Sun Life Assurance Company of Canada, upon the life of her husband, Richard Bull. The defendant has appealed from the judgment. The only question presented here is one of law, that is, the proper construction of the insurance contract. The policy at the time of its issuance was amended by endorsement to provide as follows: “Death as a result, directly or indirectly, of service, travel, or flight in any species of aircraft, as a passenger or otherwise, is a risk not assumed under this policy. The defendant contends that the death of Richard Bull was within the terms of this provision, and that therefore it is not liable. The facts are as follows: On October 14, 1939, Richard Bull made application to the defendant for the policy of insurance in suit. At that time, he was a Naval Aviation Cadet in training at Pensacola, Florida. The defendant knew that he was an Aviation Cadet and that he intended to continue in aviation after his period of training. Knowing these facts, the defendant required Richard Bull to sign the endorsement containing the aviation provision and to agree that this provision should become a part of the contract of insurance. On February 5, 1942, Richard Bull, who was then a Lieutenant (j. g.) in the United States Naval Reserve, was commanding officer and alternate pilot of a seaplane which was engaging in routine patrol duty in the South Pacific. Coming across some Japanese ships at anchor in a small harbor, Lieutenant Bull and his crew commenced bombing them, but anti-aircraft fire and Japanese Zeros peppered their plane. The port motor was shot out, gasoline poured, into the hull, filling the plane with fumes, and ten or fifteen miles from the scene of the encounter they were forced to make a landing on the water, 500 to 1,000 yards off the island of Amboina, Dutch East Indies. The plane did not crash, but after landing it could" } ]

[ { "docid": "628268", "title": "", "text": "615. The natural and obvious meaning of the aviation clause in the case at bar is that the insurer declines to assume those extra risks of death ordinarily associated with aerial flight. Where death admittedly results from the operation of one of those familiar and popularly understood risks there cannot be any issue of proximate causation for a jury to determine. Drowning after a forced landing in icy waters during a “very heavy driving snowstorm” with ceiling and visibility zero is indisputably a familiar risk ordinarily associated with aerial flight. Appellant argues that a jury would have been warranted in finding that “the insured at least temporarily reached a potential place of safety uninjured and his death, thereafter occurred by reason of other, fortuitous circumstances.” But such a finding would be utterly at variance with the stipulated facts. It is true that the plaintiff reserved the right “to introduce further evidence cumulative and in accordance with the facts set forth in this stipulation.” Possibly this reservation would have been broad enough to permit the plaintiff to introduce evidence not inconsistent with the facts stipulated. It is suggested that the plaintiff might have been able to show by such further evidence “that the proximate cause of the insured’s death was either defective life-saving equipment (jacket or raft) or negligence on the part of those who were responsible for rescue operations.” But even if it were shown that Green’s life might have been saved had such equipment been in good order, or had the rescue operations been more efficiently conducted, this would not have altered the case. The mere fact that proper protective or rescue measures might have succeeded in surmounting the risk does not obscure the conclusion that what did happen was death by the operation of a risk ordinarily associated with aerial flight. Cf. Atkinson v. Goodrich Transportation Co., 1884, 60 Wis. 141, 167, 18 N.W. 764, 776, 50 Am.Rep. 352; Am.L.Inst.Restatement of Torts, § 452. Appellant’s main reliance, on the causation point, is the recent case of Bull v. Sun Life Assurance Co., 7 Cir., 1944, 141 F.2d 456." }, { "docid": "11689554", "title": "", "text": "the insured was hit by hostile rifle fire from the ground. The helicopter was not damaged and safely returned to its base. The insured died the following day from gunshot wounds. The plaintiff claims the death of the insured did not occur as a result of his operating or riding in or descending from the said helicopter and that as the named beneficiary she is entitled to the full face amount of the policy, namely, $15,000.00. This Court agrees with her contention. The insured was killed by rifle fire from the ground. The fact that he was riding in and was acting as co-pilot of the helicopter at the time he was hit by the rifle fire was not the cause of his death. The helicopter was but the means of transporting him to the place where he was shot by an intervening party. The aviation limitation provision of this policy has not heretofore been construed nor has a case been cited that exactly fits the facts of this case. The plaintiff, however, relies in the main on Bull v. Sun Life Assurance Company of Canada, 141 F.2d 456, 155 A.L.R. 1014 (7th Cir. 1944). The insured there was a naval officer then piloting a seaplane in the South Pacific. His plane was damaged by anti-aircraft fire and he was forced to land on the water, less than a mile from the shore. The insured was not injured during the landing of the plane upon the water. He was standing on the wing of his aircraft attempting to launch his liferaft when he was killed by machine gun fire from Japanese Zeros. The Seventh Circuit there held that the insured did not meet his death “as a result, directly or indirectly, of service, travel or flight in any species of aircraft.” The defendant relies upon Order of United Commercial Travelers of America v. King, 161 F.2d 108 (4th Cir. 1947). In that case the insured was a flight observer for the Civil Air Patrol. His plane made an emergency landing some thirty miles off Cape Hatteras. The insured managed to" }, { "docid": "628266", "title": "", "text": "the aviation clause. Clearly the incontestable clause has no bearing on the present case. Head v. New York Life Insurance Co., 10 Cir., 1930, 43 F.2d 517, 519. Finally appellant makes the contention that, even conceding that Green was engaged in an “aerial flight” within the meaning of the aviation clause, the District Court was in error in concluding on the stipulated facts, as a matter of law, that the death must be regarded as having occurred “by reason of” such aerial flight. We do not agree. In view of the stipulated facts, there remained no debatable issue of proximate cause appropriate for jury determination. Neel v. Mutual Life Insurance Co. of N.Y., 2 Cir., 1942, 131 F.2d 159, is squarely in point on this phase of the case. There the policy contained a double indemnity clause which, however, provided that double indemnity shall not be payable “if death resulted * * * from participation in aeronautics.” The insured took off in a two-seater plane, flying solo, and never returned to the airport. Over two weeks later his body was found floating, face down, nine miles out in the Atlantic Ocean. There was evidence from which it could have been found that the insured made a forced landing on the water without bodily injury and died from drowning while trying to swim to shore. The court held that as a matter of law the insurer was not liable for the double indemnity. It was immaterial, the court said, that the insured might not have been killed by the impact with the water. “If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence.” (page 160 of 131 F.2d) Again, the court said, “Here, as a matter of common knowledge, and in view of the natural meaning of the words used, liability is excluded by the terms of the policy when an accident is incident to an ordinary risk of aviation.” (page 161 of 131 F.2d) See also Wendorff v. Missouri State Life Insurance Co., 1927, 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R." }, { "docid": "628270", "title": "", "text": "This case, whether correctly decided or not, is clearly distinguishable. The policy contained a clause stating that death as a result, directly or indirectly, of service, travel or flight in any species of aircraft, as a passenger or otherwise, is a risk not assumed. There was no clause excluding war risks. The insured was a pilot of a seaplane engaged in routine patrol duty in the South Pacific. The plane was peppered by Japanese anti-aircraft fire and was forced to make a landing on the water 500-1000 yards offshore. There was evidence warranting a finding that while the insured was out upon the fuselage trying to inflate a rubber boat he was shot by machine gun fire from a Japanese plane and died from the bullet wounds. The court upheld a verdict and judgment for the plaintiff. We are not inclined to disagree with this case. It may reasonably be said that death by the deliberate act of a third person is not one of the risks ordinarily associated with aerial flight. Travel in a plane brought the insured to the place where he met his death by enemy action, but he might just as well have been brought to that place by a boat or otherwise. Surely, if the plane had made a safe landing on the island, and the insured had been killed by a Japanese sniper upon alighting from the plane, “a common-sense appraisement of every day forms of speech and modes of thought” would not lead us to say that death resulted from the aerial flight within the fair meaning of the aviation clause. The situation presented in the Bull case was no different in principle. The judgment of the District Court is. affirmed, with costs to the appellee." }, { "docid": "11006315", "title": "", "text": "In neither case was death the result, direct or indirect, of service, travel, or flight in aircraft. The parties must have intended that there should somewhere be a point at which the insured would become disengaged from service, travel, or flight in that seaplane. Suppose Lieutenant Bull had reached the island and that the Japs there had shot him. Would that have been a death not covered by the policy? Such a construction would be unreasonable. Suppose that he had succeeded in launching his rubber boat and that at some point between the plane and the shore he had been shot by the Japs. Would that death have been excluded by the provision we are now considering? We think not. Does the fact that he was upon the fuselage of that wholly disabled, immobilized plane which rested at anchor in the water, useful only as a raft, create such a distinction between this and the foregoing illustrations as to tie up his death with service, travel, or flight in that seaplane? We think not. We hold that disengagement from service, travel, and flight in that seaplane had taken place in the case at bar, and that Lieutenant Bull’s death had no connection, directly or indirectly, with service, travel, or flight in that seaplane within the meaning of the policy. Where the service, travel, and flight in the aircraft had definitely ended, and the only connection the insured had with the plane at the time he met his death at the hands of a strafing Jap was that he had arrived by plane at the place where the Jap shot him, his death was too remote to be considered the result, direct or indirect, of service, travel, or flight in an aircraft. We think the true intent of the parties was to exclude the risks of aviation and to include the risks of war. The death in this case was due solely to dangers inherent in a war risk. For another reason, we do not think the contention of the defendant is valid. The provision of the policy relied upon as" }, { "docid": "11006311", "title": "", "text": "and dived into the water. The first strafing not having sunk the disabled plane, the enemy plane circled and returned for a second attack. While the witnesses were under the water, they heard an explosion, and when they emerged, the area where the plane had been was in flames, with only the tip of a wing still visible. Lieutenant Bull was never seen thereafter. Whether he was on the fuselage at the time of the second strafing does not appear. The question presented to us is whether Lieutenant Bull met his death, “as a result, directly or indirectly, of service, travel, or flight” in that seaplane. This is a legal question that requires us to construe the contract of insurance. It is elementary that such contracts are strictly construed against the insurance company. Unless the clear and reasonable construction of this contract supports the contention of the defendant, we must affirm the District Court. Many cases are cited in the briefs, but none of them seems to meet the exact situation presented here. Our problem is to determine the intention of the parties. In October, 1939, when this policy was applied for, war was raging in Europe at blitzkrieg tempo. In the Far East, war had been going on for two years, and our relations with Japan were strained. We were making preparations to expand our defense program. Under such circumstances, Lieutenant Bull had entered the armed services of his country. He was a Naval Aviation Cadet when he applied for the policy and when it was issued. The defendant knew that he intended to continue in such service. With such knowledge, the defendant drew the policy and determined the risk it would assume. It wrote its own ticket. The aviation clause we have set forth was inserted in the policy. No war clause was inserted. It is apparent, therefore, that the defendant was willing to and did assume all risks of war not connected with service, travel, or flight in aircraft. Was the death of Lieutenant Bull under the circumstances a risk of war or of aviation? Was his" }, { "docid": "11006314", "title": "", "text": "connection was that Lieutenant Bull arrived at this place by way of aircraft. But he was not injured in the arrival. He was not injured by service, travel, or flight in the aircraft. He was killed after those things had terminated. If his arrival at this place by aircraft is to be construed as an indirect cause of his death, then Lieutenant Bull would never have been protected by this policy at any place to which he came by aircraft. Suppose that he had arrived by plane at an airport in peacetime and that, as he was crawling out of the plane after landing, a personal enemy had shot and killed him, Would any reasonable man contend that his death was a result, direct or indirect, of service, travel, or flight in that plane? War risks not connected with aviation were as clearly assumed as this peacetime risk. No construction should be given the contract which would make it applicable if a personal enemy shot the insured but inapplicable if a public enemy shot him. In neither case was death the result, direct or indirect, of service, travel, or flight in aircraft. The parties must have intended that there should somewhere be a point at which the insured would become disengaged from service, travel, or flight in that seaplane. Suppose Lieutenant Bull had reached the island and that the Japs there had shot him. Would that have been a death not covered by the policy? Such a construction would be unreasonable. Suppose that he had succeeded in launching his rubber boat and that at some point between the plane and the shore he had been shot by the Japs. Would that death have been excluded by the provision we are now considering? We think not. Does the fact that he was upon the fuselage of that wholly disabled, immobilized plane which rested at anchor in the water, useful only as a raft, create such a distinction between this and the foregoing illustrations as to tie up his death with service, travel, or flight in that seaplane? We think not. We" }, { "docid": "11689556", "title": "", "text": "get out of the plane before it sank. He was observed by other aviators some two and a half hours later alive in the water. He did not make it to shore. The cause of death was “drowning as result of exposure in the water after failure of an airplane motor.” His insurance policy excluded death resulting from participation, as a passenger or otherwise, in aviation or aeronautics. The District Court held that his death resulted from accidental drowning within the terms of the policy. The Court of Appeals reversed, concluding that death clearly resulted from participation in aviation — death from exposure and drowning being a natural risk of flight over water in a land based airplane — and held the exclusion clause in the policy applicable. Judge Dobie distinguished the Bull case, cited above, by emphasizing the war risk of enemy fire and noted that the jury could have found that this intervening force caused the death of Lieutenant Bull. This Court construes the aviation limitation provision in the instant case to limit payments where death results from the operation, riding in or descending from any kind of aircraft. It was not intended to limit payments in cases where death results from an intervening cause totally unrelated to the operation of the aircraft. The burden is on the insurer to prove that the death in this case resulted from the excluded risks. This it has not done. The contract of insurance is to be strictly construed against the insurer. Chief Judge Taft, in Manufacturers’ Accident Indemnity Company v. Dorgan, 6 Cir., 58 F. 945, said: “Policies are drawn by the legal advisers of the company, who study with care the decisions of the courts, and, with those in mind, attempt to limit as narrowly as possible the scope of the insurance. It is only a fair rule, therefore, which courts have adopted, to resolve any doubts or ambiguity in favor of the insured and against the insurer.” The insurance carrier in this case could have inserted a war risk clause in the policy in question. It did not" }, { "docid": "11006312", "title": "", "text": "is to determine the intention of the parties. In October, 1939, when this policy was applied for, war was raging in Europe at blitzkrieg tempo. In the Far East, war had been going on for two years, and our relations with Japan were strained. We were making preparations to expand our defense program. Under such circumstances, Lieutenant Bull had entered the armed services of his country. He was a Naval Aviation Cadet when he applied for the policy and when it was issued. The defendant knew that he intended to continue in such service. With such knowledge, the defendant drew the policy and determined the risk it would assume. It wrote its own ticket. The aviation clause we have set forth was inserted in the policy. No war clause was inserted. It is apparent, therefore, that the defendant was willing to and did assume all risks of war not connected with service, travel, or flight in aircraft. Was the death of Lieutenant Bull under the circumstances a risk of war or of aviation? Was his death the result, direct or indirect, of service, travel, or flight in aircraft, or was it a war risk, free from aviation? It is the defendant’s contention that Lieutenant Bull’s death was the indirect result of service, travel, or flight in that patrolling seaplane. Let us consider the case from this view. The seaplane had landed and was so disabled that it would never fly again without repairs. It was anchored, and the engines had been stopped for nearly ten minutes. Service, travel, and flight in that plane had come to an end. Lieutenant Bull, as the evidence showed, was out upon the fuselage trying to inflate a rubber boat for the purpose of escape. While he was in that position, the jury had a right to infer, a Japanese plane shot him and from those bullet wounds he died. Was his death a result of aviation or of war? What connection, direct or indirect, did his death have with that disabled aircraft which lay in the water, useful only as a raft? The sole" }, { "docid": "11689555", "title": "", "text": "the main on Bull v. Sun Life Assurance Company of Canada, 141 F.2d 456, 155 A.L.R. 1014 (7th Cir. 1944). The insured there was a naval officer then piloting a seaplane in the South Pacific. His plane was damaged by anti-aircraft fire and he was forced to land on the water, less than a mile from the shore. The insured was not injured during the landing of the plane upon the water. He was standing on the wing of his aircraft attempting to launch his liferaft when he was killed by machine gun fire from Japanese Zeros. The Seventh Circuit there held that the insured did not meet his death “as a result, directly or indirectly, of service, travel or flight in any species of aircraft.” The defendant relies upon Order of United Commercial Travelers of America v. King, 161 F.2d 108 (4th Cir. 1947). In that case the insured was a flight observer for the Civil Air Patrol. His plane made an emergency landing some thirty miles off Cape Hatteras. The insured managed to get out of the plane before it sank. He was observed by other aviators some two and a half hours later alive in the water. He did not make it to shore. The cause of death was “drowning as result of exposure in the water after failure of an airplane motor.” His insurance policy excluded death resulting from participation, as a passenger or otherwise, in aviation or aeronautics. The District Court held that his death resulted from accidental drowning within the terms of the policy. The Court of Appeals reversed, concluding that death clearly resulted from participation in aviation — death from exposure and drowning being a natural risk of flight over water in a land based airplane — and held the exclusion clause in the policy applicable. Judge Dobie distinguished the Bull case, cited above, by emphasizing the war risk of enemy fire and noted that the jury could have found that this intervening force caused the death of Lieutenant Bull. This Court construes the aviation limitation provision in the instant case to limit" }, { "docid": "11006310", "title": "", "text": "not have flown again without repairs. The motors were immediately cut off and for ten minutes the plane was afloat with its anchor overboard. Gasoline was still escaping from the gas tanks into the hull of the plane and spreading upon the surrounding water so that the whole area was in an explosive condition. Two of the plane’s crew, Hargrave and Nelson, with a wounded comrade, debarked from the plane in a rubber boat. Hargrave testified by deposition that Lieutenant Bull was inside the plane the last time that he saw him. Nelson testified by deposition that the last time he saw him, he was outside the plane on the fuselage, trying to launch a rubber boat. While Lieutenant Bull was in that position, attempting to escape from the immobile, disabled plane, a Japanese seaplane dived to within thirty to fifty feet of the crippled plane, strafing it and the water around it. According to Nelson, Lieutenant Bull was exposed to this machine gun fire. To protect themselves, Nelson and Hargrave abandoned their life raft and dived into the water. The first strafing not having sunk the disabled plane, the enemy plane circled and returned for a second attack. While the witnesses were under the water, they heard an explosion, and when they emerged, the area where the plane had been was in flames, with only the tip of a wing still visible. Lieutenant Bull was never seen thereafter. Whether he was on the fuselage at the time of the second strafing does not appear. The question presented to us is whether Lieutenant Bull met his death, “as a result, directly or indirectly, of service, travel, or flight” in that seaplane. This is a legal question that requires us to construe the contract of insurance. It is elementary that such contracts are strictly construed against the insurance company. Unless the clear and reasonable construction of this contract supports the contention of the defendant, we must affirm the District Court. Many cases are cited in the briefs, but none of them seems to meet the exact situation presented here. Our problem" }, { "docid": "11006313", "title": "", "text": "death the result, direct or indirect, of service, travel, or flight in aircraft, or was it a war risk, free from aviation? It is the defendant’s contention that Lieutenant Bull’s death was the indirect result of service, travel, or flight in that patrolling seaplane. Let us consider the case from this view. The seaplane had landed and was so disabled that it would never fly again without repairs. It was anchored, and the engines had been stopped for nearly ten minutes. Service, travel, and flight in that plane had come to an end. Lieutenant Bull, as the evidence showed, was out upon the fuselage trying to inflate a rubber boat for the purpose of escape. While he was in that position, the jury had a right to infer, a Japanese plane shot him and from those bullet wounds he died. Was his death a result of aviation or of war? What connection, direct or indirect, did his death have with that disabled aircraft which lay in the water, useful only as a raft? The sole connection was that Lieutenant Bull arrived at this place by way of aircraft. But he was not injured in the arrival. He was not injured by service, travel, or flight in the aircraft. He was killed after those things had terminated. If his arrival at this place by aircraft is to be construed as an indirect cause of his death, then Lieutenant Bull would never have been protected by this policy at any place to which he came by aircraft. Suppose that he had arrived by plane at an airport in peacetime and that, as he was crawling out of the plane after landing, a personal enemy had shot and killed him, Would any reasonable man contend that his death was a result, direct or indirect, of service, travel, or flight in that plane? War risks not connected with aviation were as clearly assumed as this peacetime risk. No construction should be given the contract which would make it applicable if a personal enemy shot the insured but inapplicable if a public enemy shot him." }, { "docid": "11006316", "title": "", "text": "hold that disengagement from service, travel, and flight in that seaplane had taken place in the case at bar, and that Lieutenant Bull’s death had no connection, directly or indirectly, with service, travel, or flight in that seaplane within the meaning of the policy. Where the service, travel, and flight in the aircraft had definitely ended, and the only connection the insured had with the plane at the time he met his death at the hands of a strafing Jap was that he had arrived by plane at the place where the Jap shot him, his death was too remote to be considered the result, direct or indirect, of service, travel, or flight in an aircraft. We think the true intent of the parties was to exclude the risks of aviation and to include the risks of war. The death in this case was due solely to dangers inherent in a war risk. For another reason, we do not think the contention of the defendant is valid. The provision of the policy relied upon as a defense by the defendant becomes operative only where the insured meets “death as a result, directly or indirectly, of service, travel, or flight in any species of aircraft.” (Italics ours.) Death in this instance resulted directly from the strafing by the Jap plane. The evidence clearly supports that view. The policy does not say that it shall not apply if the death is contributed to directly or indirectly by the service, travel, or flight in the aircraft. The policy deals with results and not causes or contributing causes. Aviation may have been a contributing cause, but that did not make the death an indirect result of aviation. No risk of aviation resulted in death. A risk of war resulted in death. That was a risk not excluded by the policy. In any view of the case, the defendant must fail. Looking at the contract to determine whether service, travel, or flight in the aircraft resulted in the insured’s death, we must conclude that it did not. The facts in this case so predominantly and" }, { "docid": "628269", "title": "", "text": "to introduce evidence not inconsistent with the facts stipulated. It is suggested that the plaintiff might have been able to show by such further evidence “that the proximate cause of the insured’s death was either defective life-saving equipment (jacket or raft) or negligence on the part of those who were responsible for rescue operations.” But even if it were shown that Green’s life might have been saved had such equipment been in good order, or had the rescue operations been more efficiently conducted, this would not have altered the case. The mere fact that proper protective or rescue measures might have succeeded in surmounting the risk does not obscure the conclusion that what did happen was death by the operation of a risk ordinarily associated with aerial flight. Cf. Atkinson v. Goodrich Transportation Co., 1884, 60 Wis. 141, 167, 18 N.W. 764, 776, 50 Am.Rep. 352; Am.L.Inst.Restatement of Torts, § 452. Appellant’s main reliance, on the causation point, is the recent case of Bull v. Sun Life Assurance Co., 7 Cir., 1944, 141 F.2d 456. This case, whether correctly decided or not, is clearly distinguishable. The policy contained a clause stating that death as a result, directly or indirectly, of service, travel or flight in any species of aircraft, as a passenger or otherwise, is a risk not assumed. There was no clause excluding war risks. The insured was a pilot of a seaplane engaged in routine patrol duty in the South Pacific. The plane was peppered by Japanese anti-aircraft fire and was forced to make a landing on the water 500-1000 yards offshore. There was evidence warranting a finding that while the insured was out upon the fuselage trying to inflate a rubber boat he was shot by machine gun fire from a Japanese plane and died from the bullet wounds. The court upheld a verdict and judgment for the plaintiff. We are not inclined to disagree with this case. It may reasonably be said that death by the deliberate act of a third person is not one of the risks ordinarily associated with aerial flight. Travel in a" }, { "docid": "11006317", "title": "", "text": "a defense by the defendant becomes operative only where the insured meets “death as a result, directly or indirectly, of service, travel, or flight in any species of aircraft.” (Italics ours.) Death in this instance resulted directly from the strafing by the Jap plane. The evidence clearly supports that view. The policy does not say that it shall not apply if the death is contributed to directly or indirectly by the service, travel, or flight in the aircraft. The policy deals with results and not causes or contributing causes. Aviation may have been a contributing cause, but that did not make the death an indirect result of aviation. No risk of aviation resulted in death. A risk of war resulted in death. That was a risk not excluded by the policy. In any view of the case, the defendant must fail. Looking at the contract to determine whether service, travel, or flight in the aircraft resulted in the insured’s death, we must conclude that it did not. The facts in this case so predominantly and effectively characterize his death as one due to war risk that the remote connection between his death and service, travel, or flight in an aircraft must be considered wholly ineffectual to change that characterization. When we consider results that produced death, as provided in the policy, and not contributory causes, which were not the limiting terms of the provision, it is clear that the contract does not support the contention of the defendant. The judgment in No. 8369 is affirmed. There was a cross-appeal (No. 8370) perfected by the plaintiff involving the policy’s incontestability clause. Consistent with the disposition of the appeal in No. 8369, the cross-appeal need not be sustained, and the judgment is affirmed. The cases most nearly in point which we have been able to find are two arising out of the San Francisco earthquake of 1906. These cases, Commercial Union Assurance Co. v. Pacific Union Club, 9 Cir., 169 F. 776, and Pacific Union Club v. Commercial Union Assurance Co., 12 Cal.App. 509, 107 P. 728, 729, involved the construction of" }, { "docid": "628265", "title": "", "text": "of aerial flight. The aviation clause excludes generally “death occurring by reason of any aerial flight” and it certainly cannot be gainsaid that Green was engaged in an aerial flight on April 13, 1943, the day of his death. The clause then introduces one qualification, namely, that it is not to be applicable in the single situation where the insured is a fare-paying passenger in course of transportation from one definite terminal to another by means of an aerial conveyance in charge of a licensed pilot. Appellant would also have us read into the clause another qualification to the effect that it shall be inapplicable where the insured is flying a plane under orders in military or naval service. Such a reading would go beyond the scope of permissible interpretation. As appellee rightly says, the company is interested in the risk itself, and is not concerned with the reason for the exposure. In this connection appellant suggests that the inclusion in the policy of the standard statutory incontestable clause tends to contribute some ambiguity to the aviation clause. Clearly the incontestable clause has no bearing on the present case. Head v. New York Life Insurance Co., 10 Cir., 1930, 43 F.2d 517, 519. Finally appellant makes the contention that, even conceding that Green was engaged in an “aerial flight” within the meaning of the aviation clause, the District Court was in error in concluding on the stipulated facts, as a matter of law, that the death must be regarded as having occurred “by reason of” such aerial flight. We do not agree. In view of the stipulated facts, there remained no debatable issue of proximate cause appropriate for jury determination. Neel v. Mutual Life Insurance Co. of N.Y., 2 Cir., 1942, 131 F.2d 159, is squarely in point on this phase of the case. There the policy contained a double indemnity clause which, however, provided that double indemnity shall not be payable “if death resulted * * * from participation in aeronautics.” The insured took off in a two-seater plane, flying solo, and never returned to the airport. Over two" }, { "docid": "11006322", "title": "", "text": "Japs there had shot him?” takes us still further into the realm of speculation. I suppose the answer to that one would be that if death was so remotely connected with flight, etc., as not to result “directly or indirectly” therefrom, the exclusion clause should not be applied. It will be time enough, however, to decide that question when such a case is before us. Returning to the instant case, another fallacy is that the exclusion clause became inoperative when the seaplane landed upon the water. This approach also eliminates from the exclusion clause the words “directly or indirectly.” It is the same as saying that the exclusion clause is applicable only where death results while in flight, etc. Furthermore, if defendant is liable because death resulted from war, as the majority seems to hold, it would be immaterial whether such death resulted before or after the plane landed. In fact, the reasoning of the opinion would be just as plausible if the insured had been shot by the Japs while in the air. The flight itself being comparatively free from danger, it could be contended, just as it is here, that death was not the direct or indirect result thereof but that it was caused by Japanese bullets. The result reached by the majority ignores the realities of the situation. The insured, together with other members of the crew in performance of a war duty, sought the enemy and engaged in aerial combat in which the seaplane was disabled and forced ■down. This was an ordinary and known danger incident thereto. Within a few minutes the same enemy, in continuation of such combat, again attacked the plane in its disabled condition, during which attack the insured was killed. In my view, there is -no escape from the conclusion that death -under such circumstances was the result ^‘directly or indirectly” of the flight which had been so shortly and suddenly terminated. It is no answer to say that the exclusion clause is inapplicable because the immediate or proximate cause of death was the Japanese attack. Such answer certainly eliminates the" }, { "docid": "11006309", "title": "", "text": "he was an Aviation Cadet and that he intended to continue in aviation after his period of training. Knowing these facts, the defendant required Richard Bull to sign the endorsement containing the aviation provision and to agree that this provision should become a part of the contract of insurance. On February 5, 1942, Richard Bull, who was then a Lieutenant (j. g.) in the United States Naval Reserve, was commanding officer and alternate pilot of a seaplane which was engaging in routine patrol duty in the South Pacific. Coming across some Japanese ships at anchor in a small harbor, Lieutenant Bull and his crew commenced bombing them, but anti-aircraft fire and Japanese Zeros peppered their plane. The port motor was shot out, gasoline poured, into the hull, filling the plane with fumes, and ten or fifteen miles from the scene of the encounter they were forced to make a landing on the water, 500 to 1,000 yards off the island of Amboina, Dutch East Indies. The plane did not crash, but after landing it could not have flown again without repairs. The motors were immediately cut off and for ten minutes the plane was afloat with its anchor overboard. Gasoline was still escaping from the gas tanks into the hull of the plane and spreading upon the surrounding water so that the whole area was in an explosive condition. Two of the plane’s crew, Hargrave and Nelson, with a wounded comrade, debarked from the plane in a rubber boat. Hargrave testified by deposition that Lieutenant Bull was inside the plane the last time that he saw him. Nelson testified by deposition that the last time he saw him, he was outside the plane on the fuselage, trying to launch a rubber boat. While Lieutenant Bull was in that position, attempting to escape from the immobile, disabled plane, a Japanese seaplane dived to within thirty to fifty feet of the crippled plane, strafing it and the water around it. According to Nelson, Lieutenant Bull was exposed to this machine gun fire. To protect themselves, Nelson and Hargrave abandoned their life raft" }, { "docid": "628267", "title": "", "text": "weeks later his body was found floating, face down, nine miles out in the Atlantic Ocean. There was evidence from which it could have been found that the insured made a forced landing on the water without bodily injury and died from drowning while trying to swim to shore. The court held that as a matter of law the insurer was not liable for the double indemnity. It was immaterial, the court said, that the insured might not have been killed by the impact with the water. “If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence.” (page 160 of 131 F.2d) Again, the court said, “Here, as a matter of common knowledge, and in view of the natural meaning of the words used, liability is excluded by the terms of the policy when an accident is incident to an ordinary risk of aviation.” (page 161 of 131 F.2d) See also Wendorff v. Missouri State Life Insurance Co., 1927, 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615. The natural and obvious meaning of the aviation clause in the case at bar is that the insurer declines to assume those extra risks of death ordinarily associated with aerial flight. Where death admittedly results from the operation of one of those familiar and popularly understood risks there cannot be any issue of proximate causation for a jury to determine. Drowning after a forced landing in icy waters during a “very heavy driving snowstorm” with ceiling and visibility zero is indisputably a familiar risk ordinarily associated with aerial flight. Appellant argues that a jury would have been warranted in finding that “the insured at least temporarily reached a potential place of safety uninjured and his death, thereafter occurred by reason of other, fortuitous circumstances.” But such a finding would be utterly at variance with the stipulated facts. It is true that the plaintiff reserved the right “to introduce further evidence cumulative and in accordance with the facts set forth in this stipulation.” Possibly this reservation would have been broad enough to permit the plaintiff" }, { "docid": "14365533", "title": "", "text": "DAVIES, District Judge. This is a suit against the Atlantic Life Insurance Company to recover on two policies of insurance issued by said defendant on the life of Frank M. Martin. On December 11, 1951, Frank M. Martin was piloting a private airplane owned by Royal Crown Bottling Company with his wife and child as passengers and so equipped that only one person, namely, the pilot, could participate in the operation of the plane. The plane crashed near Trenton, Florida, resulting in the death of all three occupants. One of the insurance policies sued on carried a rider designated as “Exclusion of Certain Aviation Risks,” in the following words: “Any and all other provisions of this Contract to the contrary notwithstanding such Contract does not cover, and the following risk is not assumed: death resulting directly or indirectly from flight or travel in, or descent from or with, any kind of aircraft while the Insured is a pilot, co-pilot, or any other member of the crew thereof, or while such aircraft is being operated for the purpose of instructing, training, or learning how to fly. In the event of death so occurring the Company’s only liability shall be the reserve on this Contract at the date of death.” A similar rider was attached to the other policy upon which this suit is based, and provides, in part, as follows: “Death of the Insured under any of the following circumstances is a risk not assumed by the Company under this Contract: “Death resulting directly or indirectly from flight or travel in, or descent from or with, (1) any kind or aircraft on which the Insured is a pilot, or any other member of the crew thereof, or (2) any kind of aircraft which is being operated for any training purpose whatsoever, or (3) any kind of military or naval aircraft while the Insured is in military or naval service.” A double indemnity rider was attached to each policy which excluded the additional benefit under the following circumstances: “That said injury shall not result directly or indirectly from violence intentionally inflicted by" } ]

[ { "docid": "18065194", "title": "", "text": "motion to dismiss this claim. C. Ogden’s Counterclaim for Benefits The district court held that Ogden’s counterclaim for benefits from May 2000 to date was barred for failure to exhaust administrative remedies; specifically, for not complying with the Plan’s claim-review procedures. We have held that “claimants seeking benefits from an ERISA plan must first exhaust available administrative remedies under the plan before bringing suit to recover benefits.” Here, the Plan’s documents require a participant to file an administrative appeal of the denial of a claim for benefits within 90 days after being notified that the claim has been denied. In the district court, Ogden argued that any attempt to exhaust her administrative remedies would have been futile, but she has not advanced this limited exception to the exhaustion requirement on appeal. Neither has she challenged the district court’s finding that she failed to comply with the Plan’s claim review procedures. Instead, Ogden merely asserts that, in the event we hold that she is not contractually liable under the Reimbursement Agreement for the Social Security benefits received by her adult daughters— an issue that we do not reach as a result of our finding that CBA failed to state a federal common law cause of action — then she is entitled to recover the amount of her plan benefits that CBA suspended through exercise of its setoff rights. As Ogden has not shown on appeal that she exhausted her administrative remedies, or that her efforts to exhaust would have been futile, we must affirm the district court’s conclusion that her counterclaim is barred for failure to exhaust, and thus we affirm the court’s grant of summary judgment dismissing her counterclaim. III. CONCLUSION Concluding that CBA has failed to state an ERISA cause of action under federal common law, we reverse the district court’s denial of Ogden’s motion to dismiss CBA’s claim, grounded in federal common law, but do so for failure to state a claim, not for lack of subject matter jurisdiction, and we render a judgment dismissing that claim; however, we affirm the district court’s grant of summary judgment dismissing" } ]

[ { "docid": "23570723", "title": "", "text": "plaintiff has exhausted her administrative remedies should not be determined in the first instance on appeal, we remanded the case and instructed the district court “[to] enter findings as to whether Pollock exhausted her administrative remedies.” Norris v. Citibank, N.A. Disability Plan (501), 32 Fed.Appx. 168, 169 (8th Cir.2002) (citation omitted). On remand, the district court concluded that Pollock satisfied the Plan’s exhaustion requirement when she submitted her July 10, 1996, “Appeal.” We agree with the district court. Pollock’s disability claim was denied on June 28, 1996, when Citibank informed Pollock by letter that her “period of disability could not be recerti-fied.” In accordance with the procedures outlined in the letter, Pollock submitted her written request for review in a timely fashion. The Plan contends, however, that the exhaustion requirement was not triggered until August 29, 1996, when Aetna advised Pollock that she was ineligible for long-term disability benefits under the “any occupation” standard. According to the Plan, the June 28, 1996, letters from Aetna and Citibank relate to the automatic expiration of Pollock’s benefits under the “own occupation” standard, pursuant to the normal operation of the Plan’s provisions. Thus, the Plan argues, the June 28, 1996, letters did not constitute a “termination decision.” The Plan therefore concludes that because Pollock failed to appeal Aet-na’s August 29, 1996, determination denying benefits under the “any occupation” standard, she failed to exhaust her remedies under the Plan. This argument, however, is contrary to the plain language of the Plan. Although the Plan does provide for a change in the definition of disability after twenty-four months, it does not provide for the automatic termination of benefits. Article IV, Section 2 of the Plan outlines only five instances in which benefits may terminate: 1) the administrator determines the disability is terminated; 2) the beneficiary dies; 3) the beneficiary retires; 4) the beneficiary reaches a certain age; and 5) the beneficiary’s employment is terminated for a specified reason. Standards two through five clearly did not apply to Pollock. Thus, in order to terminate Pollock’s benefits, the plan administrator must have decided that Pollock’s disability had" }, { "docid": "2701335", "title": "", "text": "work level position.” After exhausting his administrative remedies, Groves filed a claim under ERISA, seeking judicial review of MetLife’s decision to terminate payment of long-term disability benefits. Both parties moved for summary judgment. The district court granted summary judgment in favor of MetLife, 'concluding MetLife did not abuse its discretion, as substantial evidence sup ported MetLife’s decision to terminate benefits. Groves appeals, arguing (1) the district court erred in applying the abuse of discretion standard, and (2) MetLife abused its discretion in terminating the payment of long-term disability benefits to Groves. II. DISCUSSION A. Standard of Review for Plan Administrator’s Decision We review de novo a challenge to the denial of ERISA benefits, “unless the benefit plan grants the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Ortlieb v. United HealthCare Choice Plans, 387 F.3d 778, 781 (8th Cir.2004) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). If the benefit plan gives discretion to the plan administrator, then we review the plan administrator’s decision for an abuse of discretion. Id. We reverse the plan administrator’s decision “only if it is arbitrary and capricious.” Hebert v. SBC Pension Benefit Plan, 354 F.3d 796, 799 (8th Cir.2004). We review de novo the district court’s determination of the appropriate standard of review of a benefit plan decision under ERISA. Ortlieb, 387 F.3d at 781. Groves contends the district court erred in failing to apply a de novo standard of review because the Plan did not properly delegate discretionary authority to MetLife. We disagree. The Plan booklet distributed to Great Lakes employees, which summarized the Plan for employees, states: In the event that you properly submit a claim to be paid by the Plan and the Plan denies the claim, you can appeal the denial through the appeal process outlined above. However, if the appeal is made through the internal appeals process, or to a court of law, you, by virtue of your participation in the Plan, agree that the standard for review of" }, { "docid": "21009218", "title": "", "text": "CARNES, Circuit Judge: We have held a number of times that a claimant’s failure to exhaust the administrative remedies that an ERISA plan provides for challenging the denial of a benefits claim ordinarily bars her from pursuing that claim in court. E.g., Counts v. Am. Gen. Life & Accident Ins. Co., 111 F.3d 105, 108 (11th Cir.1997). We have never decided the issue presented in this case, however, which is whether that bar should apply when the claimant’s failure to exhaust her administrative remedies is the result of language in the summary plan description that she reasonably interpreted as meaning that she could go straight to court with her claim. We conclude that the failure to exhaust bar should not apply in these circumstances, and for that reason we reverse the district court’s grant of summary judgment against the claimant. I. BACKGROUND FACTS AND PROCEDURAL HISTORY A. THE BELLSOUTH SHORT TERM DISABILITY PLAN BellSouth Telecommunications, Inc., provides short term disability benefits to eligible employees through its BellSouth Short Term Disability Plan, and it has delegated to Kemper National Services, Inc., the exclusive discretionary authority to interpret and administer the terms of the Plan. (To simplify things we will refer to both corporations as “BellSouth.”) The Plan sets up a two-tier claim and appeal procedure for participants who wish to make a disability claim. First, the plan participant must file a claim for benefits documenting the claimed disability. If that claim for benefits is denied, the Plan allows an appeal, providing: Any participant whose claim for Benefits has been denied in whole or in part and who wants this denial to be reviewed must submit a written appeal of the claim denial within 60 days after receipt of notice of denial. In accordance with 29 U.S.C. §§ 1022 and 1024(b), BellSouth provided a “summary plan description” to plan participants and beneficiaries, including the plaintiff and appellant in this case, Gloria Watts, which contains an explanation of the terms of the Plan. ERISA requires employers to put certain information in the summary plan description, including “the procedures to be followed in presenting" }, { "docid": "613414", "title": "", "text": "Houston proffers three arguments to extricate himself from this predicament. First, relying on Staple and Kelley, he argues that his claim against the United States is not subject to the six-month limitations period in section 2401(b). However, for the reasons given in Part I, we have rejected Staple and Kelley. Second, Houston distinguishes cases, such as Henderson and Meeker, dismissing claimants who failed to file an administrative claim by pointing out that he did file an administrative claim. Apparently we are to believe that these cases do not apply to Houston. This reasoning is unpersuasive. The FTCA either applies or not. If Houston was required to pursue his claim by the methods and in the time provided by the FTCA, as we held in Part I, then his compliance with the administrative exhaustion requirement does not excuse his failure to timely file suit. Halfway compliance with section 2401(b) is not enough. Houston’s third line of reasoning is that his state court suit tolls the six-month limitations period. For this proposition, he relies on McGowan v. Williams, 623 F.2d 1239, 1241 (7th Cir.1980). The Seventh Circuit held that a state suit against the driver and the government agency, timely commenced after administrative denial, complied with section 2401(b), even though the action was not removed to federal court, and thus the United States was not made a formal party, until the limitations period had expired. See also Whistler v. United States, 252 F.Supp. 913 (N.D.Ind.1966) (pre-1966 amendments case; suit filed against individual in state court tolls statute as to United States). We need not decide whether McGowan states the proper rule, because it is distinguishable on two grounds. First, in McGowan the driver “received proper notice of the plaintiffs action within the time limitation of Section 2401(b).” 623 F.2d at 1244. The court deemed this to be notice on the United States. Id. By contrast, Houston did not serve any defendant within the six-month limitations period. Second, unlike the plaintiff in McGowan, Houston is relying on a suit brought before he had exhausted his administrative remedies. No court could have tried his" }, { "docid": "1061231", "title": "", "text": "case at bar, the Plaintiffs do not allege that exhausting their administrative remedies would be “clearly useless.” Rather, they argue that exhaustion should be waived because Verizon failed “to advise employees in writing of the denial of the claim for EISP benefits and to apprise employees of their rights to seek review of such denial.” The Plaintiffs, however, do not cite any authority supporting this contention. Circuit courts have refused to waive the exhaustion requirement in ERISA cases where the claimant was not adequately informed of claims procedures. See Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 n. 2 (2d Cir.2001); and Bourgeois v. Pension Plan for Employees of Santa Fe Int’l Corps., 215 F.3d 475 (5th Cir.2000). In Bourgeois, for example, the Fifth Circuit required an ERISA claimant to exhaust his administrative remedies, despite finding that “the lack of information and the behavior of various officials of the company led [him] on a wild goose chase ....”215 F.3d at 481. In sum, the Plaintiffs are unable to clearly and positively demonstrate that the strict requirement of exhaustion should be waived. The Plaintiffs’ lack of notice of the plan procedures and the complexity of the plan itself does not outweigh the importance of mandating the private resolution of ERISA claims before judicial review. IV. CONCLUSION For the reasons given, the Court GRANTS Verizon’s motion for summary judgment (dkt. no. 3) because of the Plaintiffs’ failure to exhaust administrative remedies. The Court DENIES Verizon’s motion as to its statute of limitations defense under LMRA. Therefore, the Court DISMISSES the case WITHOUT PREJUDICE and REMANDS the Plaintiffs’ claims to the EISP administrator for further consideration. It is so ORDERED. The Clerk is directed to transmit copies of this Order to counsel of record. . The Court’s brief summary of the relevant facts is stated in a light most favorable to the Plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). . Many, if not most, employment benefits plans are collectively bargained." }, { "docid": "23382220", "title": "", "text": "383-84 (D.N.J.1999) (relying on Berger). In Berger, we affirmed a finding of futility where the District Court excused three of four plaintiffs seeking retirement under a particular pension plan from exhausting administrative remedies. 911 F.2d at 917. We agreed the blanket denial of applications for a particular retirement plan — and Edgewater’s failure to comply with the plan’s administrative procedures — weighed in favor of concluding that “any resort by these employees to the administrative process would, have been futile.” Id. But we also affirmed the denial of the futility exception to a fourth plaintiff who had never asked for the specific type of retirement plan, holding: “We agree with the district court’s conclusion that because Kier did not request 70/80 retirement, he is precluded from seeking judicial relief on his claims seeking to enforce the terms of the Plan.” Id. The District Court here found Mr. Harrow’s case to be more like that of the fourth plaintiff for whom the futility exception was not granted. The Court also cited to Metz, in which none of the plaintiffs had filed an application for enhanced benefits as required under the severance plan. See Metz, 61 F.Supp.2d at 383-84. Other courts of appeals have addressed whether the futility exception applies in circumstances that more closely mirror our case. These cases involve plaintiffs who, like Mr. Harrow, have requested plan benefits. Given the policies underlying the exhaustion requirement, these courts have been reluctant to grant the excéption without clear evidence of futility. E.g., Bourgeois v. Pension Plan for Employees of Santa Fe Int’l Corp., 215 F.3d 475, 480 (5th Cir.2000); Weiner v. Klais & Co., 108 F.3d 86, 91 (6th Cir.1997) (refusing to excuse exhaustion because plaintiff did not allege “any factual basis” for his futility claim); Diaz, 50 F.3d at 1485-86 (denying futility exception where Spanish-speaking claimants were delinquent in filing an administrative appeal, even though insurance company’s on-site representative said, “They’re not going to pay,” because court found “record contains nothing but speculation to suggest that the administrators would have reached a preconceived result in that respect.”); see also Wilson v." }, { "docid": "20475750", "title": "", "text": "contractual obligation to pay money past due, which the Supreme Court disallowed under § 1132(a)(3) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210-12, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Chorosevic appeals the district court’s orders granting summary judgment, granting Appellees leave to file answers out of time, denying class discovery, denying class certification, and denying alteration of the orders denying class certification. III. Summary Judgment The district court granted summary judgment because of Chorosevic’s failure to exhaust available administrative remedies under the Choices Plan. Chorosevic contends that (1) he exhausted his administrative remedies through the November letter to United, (2) his remedies should be deemed exhausted due to United’s failures to follow its own appeals procedures, and (3) the exhaustion requirement is inapplicable because further appeals would have been futile. “Exhaustion is a threshold legal issue we review de novo.” Kinkead v. S.W. Bell Corp. Sickness & Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir.1997). A. Exhaustion of Administrative Remedies “Where a claimant fails to pursue and exhaust administrative remedies that are clearly required under a particular ERISA plan, his claim for relief is barred.” Layes v. Mead Corp., 132 F.3d 1246, 1252 (8th Cir.1998). Exhaustion of available administrative remedies enables employers and ERISA-covered plans “to obtain full information about a claim for benefits, to compile an adequate record, and to make a reasoned decision,” Back v. Danka Corp., 335 F.3d 790, 792 (8th Cir.2003). “The process is of substantial benefit to reviewing courts, because it gives them a factual predicate upon which to proceed.” Id. Chorosevic alleges that Appellees violated the Choices Plan’s coordination-of-benefits provision by failing to reimburse him for out-of-pocket expenses from the benefits reserve, i.e., the money that the Choices Plan saved by being Chorosevic’s secondary insurer instead of his primary insurer. The parties refer to this as the “banked money issue.” Specifically, Chorosevic contends that Appellees owe him $13.00 for services rendered in June 2004 and $190.10 for services rendered in August 2004. Chorosevic does not dispute that the 180-day deadline for appealing the denial of benefits" }, { "docid": "16809030", "title": "", "text": "seeking judicial review. We agree with Moyer that on the date his revocation letter was sent, it was required to include the time limit for judicial review. We turn to the ERISA “Claims procedure” statute, 29 U.S.C. § 1133, to explain why. The disseht argues that we may not examine the requirements for claim-denial letters because Moyer’s arguments failed to specifically reference that statute and that regulation. We do not see our review as so narrowly circumscribed. Moyer argues in his brief, as he did before the district court, that MetLife’s correspondence with him — including specifically the adverse benefit determination letter — was required to include the time limits for judicial review. The issue, therefore, was properly raised and we. may consider the relevant arguments, including application of the appropriate ERISA provisions. ERISA § 1133 governs adverse benefit determination letters.' It explicitly authorizes the Secretary of Labor to establish regulations explaining the meaning of the statute and requires that the statute be applied “[i]n accordance with regulations of the Secretary.” 29 U.S.C. § 1133; see Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 806 (6th Cir.1996). The regulations require that benefit denial letters provide: “[a] description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action ... following an adverse benefit determination on review.” 29 C.F.R. § 2560.503-1 (emphasis added). The claimant’s right to bring a civil action is expressly included as a part of those procedures for which applicable time limits must be provided. Cases of and in our sister circuits support this conclusion. See Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675, 680 (1st Cir.2011) (“[The employer] was required by [29 C.F.R. § 2560.503-l(g)(l)(iv) ] to provide [the employee] with notice of his right to bring suit under ERISA, and the time frame for doing so, when it denied his request for benefits.” (emphasis added)); McGowan v. New Orleans Empl’rs Int’l Longshoremen’s Ass’n, 538 Fed.Appx. 495, 498 (5th Cir.2013) (finding that a benefit termination letter substantially complied with 29" }, { "docid": "18198027", "title": "", "text": "that Rosemary “waives any and all rights, title, interest or claims ... to all bank accounts, life insurance policies and any right to the New Jersey Gas Company Employee Pension Plan of the Husband.” (App. at A61.) Shortly after Rosemary signed this purported waiver, McGowan contacted the Plan to change the named survivor beneficiary. On July 27, 1998, Rosemary signed a form consenting to the election of McGowan’s first wife, Shirley McGowan, as the replacement beneficiary. In an August 6, 1998, letter, the Plan’s benefits manager, Nancy Renner, informed McGowan that the Plan did not permit changes to his prior contingent beneficiary election once he started receiving benefit payments. Notwithstanding the Plan’s denial of his initial request, McGowan sought to change beneficiaries again after his marriage to his current wife, Donna McGowan, on^ November 3, 2001. NJNG refused to recognize McGowan’s nomination of Donna as the new contingent beneficiary and maintained that Rosemary was still the beneficiary under the Plan. On February 25, 2002, McGowan filed an appeal with the Plan, which was denied by the Plan Claims Administration Committee on April 30, 2002. McGowan subsequently exhausted all administrative appeals and commenced the present action with a two-count Complaint in the United States District Court for the District of New Jersey on March 5, 2003. In Count I, McGowan sought a declaration directing NJNG to recognize Rosemary’s waiver and the subsequent nomination of Donna as the new beneficiary. In Count II, McGowan sought the imposition of civil penalties against NJNG for allegedly failing to produce Plan documents within the time period designated by ERISA at 29 U.S.C. § 1132(c). In its July 26, 2004, Order and Opinion, the District Court denied McGowan’s Motion for Summary Judgment and granted NJNG’s Cross-Motion for Summary Judgment. Appellant filed a timely Notice of Appeal with this Court on August 23, 2004. II. JURISDICTION AND STANDARDS OF REVIEW NJNG’s retirement plan is an “employee welfare benefit plan” within the meaning of ERISA, 29 U.S.C. § 1002(1). The District Court thus had federal question jurisdiction over the instant dispute pursuant to 28 U.S.C. § 1331. See" }, { "docid": "18065203", "title": "", "text": "985 (4th Cir.1990). . See id. at 993. . See id. at 986-87. . See id.; 29 U.S.C. § 1132(a)(1). . See Waller, 906 F.2d at 987, 991. . See id. at 988 n. 6 . 319 F.3d 140, 149 (4th Cir.2003). . See id. . Id. . Id. . Id. (quoting Waller, 906 F.2d at 990). . See Jamail, Inc., 954 F.2d at 305. . See id. (describing Waller as “a case in which equitable principles were applied to the pension plan's benefit”) (citing Waller, 906 F.2d at 990). . Id. . Knudson, 534 U.S. at 212-13, 122 S.Ct. 708 (quoting Reich v. Continental Casualty Co., 33 F.3d 754, 756 (7th Cir.1994)). . Jurisdiction over Ogden’s counterclaim is premised on § 1132(a)(1) which allows a participant to bring a civil action \"to recover benefits due to him under the terms of his plan.” 29 U.S.C. 1132(a)(1)(B). . Ogden also moved for partial summary judgment in the district court on her affirmative defense that CBA was not entitled to offset her plan benefits by the amount of her monthly retirement pension because, under the terms of the Plan, retirement pension benefits could only be offset \"to the extent [they were] paid to the Participant,” and Ogden had in fact withdrawn the funds from her pension and rolled them into an IRA. The district court rejected this argument on the basis that Ogden had not followed the Plan's claim review procedure in challenging CBA's decision to offset her pension benefits. We do not address this issue as Ogden has not briefed it on appeal. . See Cooperative Benefit Adm'rs, Inc., 265 F.Supp.2d at 681. . Bourgeois v. Pension Plan for the Employees of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir.2000) (citing Denton v. First Nat'l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir.1985)). . We have \"recognized an exception to the affirmative defense of failure to exhaust administrative remedies when such attempts would be futile.” Id. (citing Hall v. Nat’l Gypsum Co., 105 F.3d 225, 232 (5th Cir.1997))." }, { "docid": "18198028", "title": "", "text": "the Plan Claims Administration Committee on April 30, 2002. McGowan subsequently exhausted all administrative appeals and commenced the present action with a two-count Complaint in the United States District Court for the District of New Jersey on March 5, 2003. In Count I, McGowan sought a declaration directing NJNG to recognize Rosemary’s waiver and the subsequent nomination of Donna as the new beneficiary. In Count II, McGowan sought the imposition of civil penalties against NJNG for allegedly failing to produce Plan documents within the time period designated by ERISA at 29 U.S.C. § 1132(c). In its July 26, 2004, Order and Opinion, the District Court denied McGowan’s Motion for Summary Judgment and granted NJNG’s Cross-Motion for Summary Judgment. Appellant filed a timely Notice of Appeal with this Court on August 23, 2004. II. JURISDICTION AND STANDARDS OF REVIEW NJNG’s retirement plan is an “employee welfare benefit plan” within the meaning of ERISA, 29 U.S.C. § 1002(1). The District Court thus had federal question jurisdiction over the instant dispute pursuant to 28 U.S.C. § 1331. See also 29 U.S.C. § 1132(a)(1)(B) (a plan participant has the right to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of' the plan, or to clarify his rights to future benefits under terms of the plan”). Pursuant to 28 U.S.C. § 1291, this Court has appellate jurisdiction over the District Court’s final order ruling on the parties’ cross-motions for summary judgment. “The standard of review in an appeal from an order resolving cross-motions for summary judgment is plenary.” Cantor v. Perelman, 414 F.3d 430, 434 n. 2 (3d Cir.2005) (citing Int’l Union, United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990)). In reviewing the propriety of a summary judgment ruling, we apply the same standard that the District Court should have applied. Bucks County Dep’t of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61, 65 (3d Cir.2004). Under Fed.R.Civ.P. 56(c), summary judgment should be granted where the “pleadings, depositions, answers to interrogatories, and admissions" }, { "docid": "20475749", "title": "", "text": "result of excusable neglect.” Chorosevic and Appellees filed motions for summary judgment on the remaining claims in December 2008. While the summary judgment motion was pending, Chorosevic requested leave to file, in essence, a third motion for class certification based on newly discovered evidence that United incorrectly calculated secondary benefits for other ERISA-covered plans with similar coordination-of-benefits provisions. The district court denied the motion to reopen the class certification question, explaining that the new evidence did not cure the problems identified by the court in the two prior orders denying class certification. The district court granted summary judgment for Appellees on Chorosevic’s remaining claims and denied Chorosevic’s summary judgment motion. The district court concluded that Chorosevic’s failure to exhaust administrative remedies under the Choices Plan barred his § 1132(a)(1)(B) claim to recover benefits owed to him. With regard to Chorosevic’s § 1132(a)(3) claim for breach of fiduciary duty, the court noted an exhaustion-of-remedies problem but held that Chorosevic’s claim failed as a matter of law because he was essentially requesting an injunction to enforce a contractual obligation to pay money past due, which the Supreme Court disallowed under § 1132(a)(3) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210-12, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Chorosevic appeals the district court’s orders granting summary judgment, granting Appellees leave to file answers out of time, denying class discovery, denying class certification, and denying alteration of the orders denying class certification. III. Summary Judgment The district court granted summary judgment because of Chorosevic’s failure to exhaust available administrative remedies under the Choices Plan. Chorosevic contends that (1) he exhausted his administrative remedies through the November letter to United, (2) his remedies should be deemed exhausted due to United’s failures to follow its own appeals procedures, and (3) the exhaustion requirement is inapplicable because further appeals would have been futile. “Exhaustion is a threshold legal issue we review de novo.” Kinkead v. S.W. Bell Corp. Sickness & Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir.1997). A. Exhaustion of Administrative Remedies “Where a claimant fails to pursue and" }, { "docid": "8222227", "title": "", "text": "review of her claim and the denial of her claim was not arbitrary and capricious, we affirm the district court’s grant of summary judgment to the defendants. B. Dismissal of Midgett’s Long-Term Disability Claim Midgett also argues that the district court erred in dismissing her long-term disability claim for failure to exhaust administrative remedies. “In this circuit, benefit claimants must exhaust [the benefits appeal] procedure before bringing claims for wrongful denial to court.” Galman v. Prudential Ins. Co. of Am., 254 F.3d 768, 770 (8th Cir.2001). Indeed, “[w]here a claimant fails to pursue and exhaust administrative remedies that are clearly required under a particular ERISA plan, his claim for relief is barred.” Layes v. Mead Corp., 132 F.3d 1246, 1252 (8th Cir.1998). But “[a] party may be excused from exhausting administrative remedies ... if further administrative procedures would be futile,” and “[a]n administrative remedy will be deemed futile if there is doubt about whether the agency could grant effective relief.” Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 1000 (8th Cir.2006). “[U]nsupported and speculative” claims of futility do not excuse a claimant’s failure to exhaust his or her administrative remedies. Klaudt v. U.S. Dep’t of Interior, 990 F.2d 409, 412 (8th Cir.1993). Washington Group provided long-term disability benefits through a group disability insurance policy issued by Highmark Life Insurance Company. Highmark’s group insurance certificate states that a claimant may not commence a legal action until 60 days after providing proof of a claim, but Midgett never applied for long-term disability benefits. Midgett contends that it would have been futile for her to pursue a long-term disability claim in light of the denial of her short-term disability claim. Highmark’s group insurance certificate states that long-term disability benefits are only payable upon the expiration of the “Benefit Qualifying Period,” which begins on the day the beneficiary becomes disabled and “ends upon the last to occur of’ the following: 1. The termination of your benefits under any salary continuation or short term disability benefits plan sponsored by the Policyholder; 2. The exhaustion of your accumulated sick leave" }, { "docid": "18198025", "title": "", "text": "OPINION VAN ANTWERPEN, Circuit Judge. Appellant James M. McGowan, Sr., was employed by Appellee New Jersey Natural Gas Company (“NJNG”) for more than 27 years. He participated in NJNG’s Plan for Retirement Allowances for Non-represented Employees (“the Plan”) and initially designated his second wife, Rosemary, the “joint and survivor contingent beneficiary.” On March 5, 2003, McGowan filed an action in the United States District Court for the District of New Jersey, seeking declaratory relief directing NJNG and the Plan to recognize: (1) Rosemary’s purported waiver of her rights as beneficiary; and (2) McGowan’s subsequent nomination of his present wife, Donna, as the new beneficiary. Whether the administrators of a retirement plan that is covered by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., are required to recognize an individual’s waiver of her beneficiary interest under the plan is an issue of first impression in this Circuit, and there is a split among the courts of appeals that have considered the issue. The District Court below denied McGowan’s motion for summary judgment and granted summary judgment in favor of NJNG. The court held that Plan administrators are not required to look beyond Plan documents to determine whether a waiver has been effectuated in a private agreement between the participant and his named beneficiary. For the reasons set forth below, we will affirm. I. FACTUAL AND PROCEDURAL HISTORY McGowan was employed by NJNG from May 12, 1969, until his retirement on November 30, 1996. As of the date of his retirement, McGowan was married to his second wife, Rosemary Byrne. Shortly before his retirement, McGowan elected to receive his retirement benefits in the form of an “automatic surviving spouse option,” creating a 50% survivor annuity for Rosemary. This election remained in effect when he began receiving benefits in 1996. McGowan and Rosemary were divorced in Palm Beach County, Florida, on May 24, 1999. On July 23, 1998, prior to the formal entry of the divorce, they entered into a Marital Settlement Agreement, which was later incorporated into the final judgment of dissolution. The agreement stated" }, { "docid": "22768927", "title": "", "text": "any point to demonstrate disability. Therefore, Metropolitan did not act unreasonably in refusing to reinstate benefits or schedule a second independent examination unless plaintiff first submitted further evidence of continuing disability. We find that Metropolitan’s actions in terminating plaintiffs disability benefits are consistent with a fair reading of the discretionary authority granted to the insurance company under the Plan and affirm the decision of the district court to grant Metropolitan summary judgment on this issue. IV. Plaintiff finally argues that the district court should not have considered plaintiffs failure to submit additional documentation of her disability in its decision to grant summary judgment to defendant. Plaintiff maintains that the district court could correctly consider only the evidence before Metropolitan at the time of its termination of benefits, which consisted of Dr. Murthi’s report alone. It is true that when reviewing a denial of benefits under ERISA, a court may consider only the evidence available to the administrator at the time the final decision was made. This limitation applies to both an “arbitrary and capricious” or a de novo standard of review. Crews v. Central States, Southeast and Southwest Areas Pension Fund, 788 F.2d 332, 336 (6th Cir.1986) (applying the principle to the “arbitrary and capricious” standard of review); Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir.1990) (applying the principle to the de novo standard of review). However, plaintiff misconstrues the extent of this limitation. In reviewing a final decision, this court must consider what occurred during the administrative appeals process. The administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing suit in federal court. “Every employee benefit plan shall ... afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2); Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 825-26 (1st Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988); Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir.1985)," }, { "docid": "23382225", "title": "", "text": "more than make one telephonic inquiry before instituting suit. In this sense, plaintiff did not act reasonably. This case is difficult because at some point in the future — in this instance, only a few months — Prudential adopted a blanket policy denying coverage for Viagra. But at the time Mr. Harrow filed suit it was unclear and uncertain whether Prudential would automatically bar coverage. More importantly, the Harrows took no action after the initial phone call to an unidentified person to press their request. Under this set of facts, the exhaustion of remedies requirement demands more. For these reasons, we agree the futility exception does not apply and we will affirm the District Court’s grant of summary judgment on the benefits claim for failure to exhaust administrative remedies. C. Summary Judgment was properly granted on plaintiffs breach of fiduciary duty claim The District Court also dismissed the claim alleging breach of fiduciary duty for failure to exhaust administrative remedies. Mrs. Harrow contends the exhaustion requirement does not apply because she is asserting statutory rights under ERISA § 404, 29 U.S.C. § 1104(a). But the District Court held that the fiduciary duty claim merely recast the benefits claim in statutory terms and was still subject to the exhaustion doctrine. We agree. As noted, courts require exhaustion of administrative remedies prior to hearing an action for a denial of ERISA benefits. We apply the exhaustion requirement to ERISA benefit claims, but not to claims arising from violations of substantive statutory provisions. Zipf, 799 F.2d at 891 (administrative exhaustion not required when plaintiff alleged termination in violation of ERISA § 510); Savage v. Conn. Gen. Life Ins. Co., Civ. A. No. 96-1709, 1996 WL 434288, 1996 U.S. Dist. LEXIS 11106, at *2 (E.D.Pa. July 31, 1996) (“Where statutory violations are alleged, a claimant need not exhaust his/her administrative remedies before seeking relief in federal court, whereas claims alleging a denial or requiring a recalculation of benefits must first be submitted on internal appeal to the plan.”), aff'd, 162 F.3d 1151 (3d Cir.1998); Blahuta-Glover v. Cyanamid Long Term Disability Plan, Civ. A. No." }, { "docid": "1061230", "title": "", "text": "401 F.3d 222, 230 (4th Cir.2005) (citing Makar v. Health Care Corp., 872 F.2d 80, 82 (4th Cir.1989)) (other citation omitted) (emphasis added). Insisting that claimants adhere to plan remedies vindicates “Congress’ apparent intent in mandating ... internal claims procedures^] ... [which] was to minimize the number of frivolous ERISA lawsuits; promote the consistent treatment of benefit claims; provide a nonadversarial dispute resolution process; and decrease the cost and times of claims settlement.” Makar, 872 F.2d at 83 (citation omitted); see Gayle, 401 F.3d at 229. Therefore, to circumvent the exhaustion requirement, Plaintiffs must make a “clear and positive” showing that pursuit of plan remedies would be futile. Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir.1995) (cit ing Makar, 872 F.2d at 83). “The futility exception ... is quite restricted, and has been applied only when resort to administrative remedies is ‘clearly useless.’ ” Communication Workers of America v. AT & T, 40 F.3d 426, 433 (D.C.Cir.1994); see Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 419 (6th Cir.1998). In the case at bar, the Plaintiffs do not allege that exhausting their administrative remedies would be “clearly useless.” Rather, they argue that exhaustion should be waived because Verizon failed “to advise employees in writing of the denial of the claim for EISP benefits and to apprise employees of their rights to seek review of such denial.” The Plaintiffs, however, do not cite any authority supporting this contention. Circuit courts have refused to waive the exhaustion requirement in ERISA cases where the claimant was not adequately informed of claims procedures. See Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 n. 2 (2d Cir.2001); and Bourgeois v. Pension Plan for Employees of Santa Fe Int’l Corps., 215 F.3d 475 (5th Cir.2000). In Bourgeois, for example, the Fifth Circuit required an ERISA claimant to exhaust his administrative remedies, despite finding that “the lack of information and the behavior of various officials of the company led [him] on a wild goose chase ....”215 F.3d at 481. In sum, the Plaintiffs are unable to clearly and positively demonstrate that" }, { "docid": "7851623", "title": "", "text": "v. Knowles, 245 F.3d 941, 948 (7th Cir.2001) (finding no exemption where a plan \"had the purpose of avoiding not only the limitations contained in § 415 of the Internal Revenue Code, but also those limitations contained in § 401(a)(17) of Title 26”). . Bourgeois v. Pension Plan for the Employees of Santa Fe Int'l Corps., 215 F.3d 475, 479 (5th Cir.2000) (citing Denton v. First Nat’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir.1985)). . Crowell, 481 F.Supp.2d at 803. . Id. at 808. . The court stated in a footnote, Rather than dismiss his case outright, Sie-gel requests that the court stay the proceedings so that he may pursue administrative remedies. In other circumstances the court might agree. But in this case the parties have already briefed the court on the merits of the benefits claim in both suits, and the court is ready to rule. And as the court finds Crowell’s identical claim insufficient as a matter of law, see infra, there is no need to stay Siegel’s case when the same unfavorable outcome is assured. The court thus will reach the merits of Shell’s summary judgment motions in both cases. Crowell, 481 F.Supp.2d at 808 n. 7 (internal citation omitted). .Citing Sookma v. Millard, 151 Fed.Appx. 299, 301 (5th Cir.2005); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993). . Transitional Learning Ctr. at Galveston v. Metro. Life Ins. Co., 1996 WL 625412 at *1 (No. 96-40154, 5th Cir. Oct. 19, 1996) (unpublished) (citing Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir.1993)); see also Bourgeois, 215 F.3d at 481 (holding in the ERISA context that \"a court should not relinquish its jurisdiction because of a failure to exhaust administrative remedies when there was a valid reason for such failure”). . Transitional Learning Ctr., 1996 WL 625412 at *1; see also Bourgeois, 215 F.3d at 479 (discussing \"the affirmative defense of failure to exhaust administrative remedies” in the context of an ERISA plan (citing Hall v. National Gypsum Co., 105 F.3d 225, 232 (5th Cir.1997))). . See, e.g., Metro. Life Ins. Co." }, { "docid": "13372895", "title": "", "text": "her case. Exhaustion requirements and time limits apply to all types of employee benefit plans, including disability plans. See, e.g., Jones v. UNUM Life Insurance Co. of America, 223 F.3d 130, 140 (2d Cir.2000); Tiger, 633 F.Supp. at 534. It is in the nature of a disability plan that anyone who is likely to contest a denial of benefits will be a person who is, or perceives herself to be, suffering from an ailment or impairment. ERISA’s administrative claim and exhaustion requirements do not recognize a disability exception. See generally, 29 C.F.R. § 2560.503-1 (2001). Nor is the absence of legal representation at the claims stage a ground for waiver of the exhaustion requirement. ERISA’s statutory provisions and the related regulations requiring plain-language notices of the administrative appeals process contemplate the ability of participants and beneficiai'ies to pursue appeals processes without formal legal representation. See id. Thus, neither Plaintiffs allegations concerning her medical condition nor those concerning her status with regard to legal representation raise material issues of fact with respect to the requirement of exhaustion of administrative remedies. Plaintiff further asserts that the “futility” exception to exhaustion applies here. The futility exception looks to the likelihood that “available administrative remedies” would produce a result different from the one being challenged. Futility would excuse an ERISA Plaintiffs failure to exhaust only where the claimant clearly demonstrates “that pursuing available administrative remedies would be futile.” Kennedy, 989 F.2d at 594. Here, by reason of Plaintiffs own failure to challenge timely the contested decision, no administrative remedies are available. That is not futility within the meaning of the doctrine and, accordingly, does not constitute grounds for relief from the exhaustion requirement. In light of the undisputed failure to exhaust administrative remedies on a timely basis, any claim under ERISA with regard to the June 1998 benefit denial would be barred and amendment of the complaint would thus be futile. Accordingly, Defendant’s motion for summary judgment is granted and Plaintiff will not be given leave to amend further her complaint. CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgment is granted. IT" }, { "docid": "23570721", "title": "", "text": "was capable of obtaining gainful employment, it was terminating her disability certification as of April 28, 1996. Pollock did not seek a review of this determination. II. “ERISA provides a plan beneficiary with the right to judicial review of a benefits determination.” Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir.1998) (citing 29 U.S.C. § 1132(a)(1)(B)). Because it is undisputed that the Plan gives the administrator discretionary authority to determine eligibility for benefits, we review the administrator’s decision for abuse of discretion. See id. “This deferential standard reflects our general hesitancy to interfere with the administration of a benefits plan.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998) (citations omitted). Under the abuse of discretion standard, “the proper inquiry is whether the plan administrator’s decision was reasonable.” Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1179 (8th Cir.2001) (internal quotations omitted). A plan administrator’s fact-based disability decision is reasonable if it is supported by “substantial evidence.” Id. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Both the quantity and quality of evidence may be considered.” Id. (internal quotations and citation omitted). Under this standard, a reviewing court should consider only the evidence that was before the plan administrator when the claim was denied. Layes, 132 F.3d at 1251. We review the district court’s application of this standard de novo. Fletcher-Merrit, 250 F.3d at 1179. A. We turn first to the issue of exhaustion. When an ERISA benefits plan clearly requires exhaustion, a claimant’s failure to exhaust her administrative remedies bars her from seeking relief in federal court. See Layes, 132 F.3d at 1252. The parties in this case do not dispute that the Plan requires exhaustion. They do dispute whether Pollock did, in fact, exhaust her administrative remedies. Although the Plan raised its failure-to-exhaust argument before the district court, the court entered no findings of fact or conclusions of law regarding exhaustion and made no mention of the issue in any of its decisions. Concluding that the question whether a" } ]

[ { "docid": "22381566", "title": "", "text": "469: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. . . . But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended.” When we examine “what was done” here, we see that Knetsch paid the insurance company $294,570 during the two taxable years involved and received $203,000 back in the form of “loans.” What did Knetsch get for the out-of-pocket difference of $91,570? In form he had an annuity contract with a so-called guaranteed cash value at maturity of $8,388,000, which would produce monthly annuity payments of $90,171, or substantial life insurance proceeds in the event of his death before maturity. This, as we have seen, was a fiction, because each year Knetsch’s annual borrowings kept the net cash value, on which any annuity or insurance payments would depend, at the relative pittance of $1,000. Plainly, therefore, Knetsch’s transaction with the insurance company did “not appreciably affect his beneficial interest except to reduce his tax . . . Gilbert v. Commissioner, 248 F. 2d 399, 411 (dissenting opinion). For it is patent that there was nothing of substance to be realized by Knetsch from this transaction beyond a tax deduction. What he was ostensibly “lent” back was in reality only the rebate of a substantial part of the so-called “interest” payments. The $91,570 difference retained by the company was its fee for providing the fagade of “loans” whereby the petitioners sought to reduce their 1953 and 1954 taxes in the total sum of $233,297.68. There may well be single-premium annuity arrrangements with nontax substance which create an “indebtedness” for the purposes of § 23 (b) of the 1939 Code and § 163 (a) of the 1954 Code. But this one is a sham. The petitioners contend, however, that the Congress in enacting § 264 of the 1954 Code authorized the deductions. They point out that § 264 (a)(2) denies a deduction for amounts paid on indebtedness" } ]

[ { "docid": "12958663", "title": "", "text": "indebtedness”. Gov’t Br. at 27. 1) General rule on sham transactions: The general rule on sham transactions in this circuit is well-established: “If a transaction is devoid of economic substance ... it simply is not recognized for federal taxation purposes, for better or for worse. This denial of recognition means that a sham transaction, devoid of economic substance, cannot be the basis for a deductible loss.” Lerman v. Comm’r of Internal Revenue, 939 F.2d 44, 45 (3rd Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1940, 118 L.Ed.2d 546 (1992). Ler-man reflects the fundamental and longstanding rule that taxation depends on the substance, not the form, of transactions. See e.g. Gregory v. Helvering, 293 U.S. 465, 469-70, 55 S.Ct. 266, 267-68, 79 L.Ed. 596 (1935). Where a transaction has no substance other than to create deductions, the transaction is disregarded for tax purposes. Knetsch v. United States, 364 U.S. 361, 366, 81 S.Ct. 132, 135, 5 L.Ed.2d 128 (1960); DeMartino v. Commissioner, 862 F.2d 400, 401 (2nd Cir.1988). Deductions for expenses resulting from such transactions are not permitted. James v. Commissioner, 899 F.2d 905, 908 n. 4 (10th Cir.1990) (“transactions lacking an appreciable effect, other than tax reduction, on a taxpayer’s beneficial interest will not be recognized for tax purposes”); Yosha v. Commissioner, 861 F.2d 494, 499 (7th Cir.1988) (where transactions “were devices whose only possible or contemplated effect was to avoid taxes, and a fortiori they were not engaged in for profit”, resulting deductions violate the tax code). Wexler does not challenge the sham-transaction doctrine in general. Rather, Wexler argues that the doctrine does not apply to deduction of interest payments pursuant to § 163 of the tax code if the taxpayer’s obligation to pay the interest is binding and enforceable. Wexler grounds his arguments in both the statute and the case law. First, he argues that § 163 differs from other sections of the code by not requiring that the underlying transaction be motivated by profit. Second, he argues that a modern trend in the ease law favors allowing deductibility of genuine debt, even when related to a" }, { "docid": "23614661", "title": "", "text": "“exalt[ing] artifice above reality.” Id. at 469-70, 55 S.Ct. at 267-68. Thus, pursuant to Gregory, we must “look beyond the form of [the] transaction” to determine whether it has the “economic substance that [its] form represents,” Kirch-man v. Commissioner, 862 F.2d 1486, 1490 (11th Cir.1989), because regardless of its form, a transaction that is “devoid of economic substance” must be disregarded for tax purposes and “cannot be the basis for a deductible loss.” Lerman, 939 F.2d at 45; accord United States v. Wexler, 31 F.3d 117, 122 (3d Cir.1994). In applying these principles, we must view the transactions “as a whole, and each step, from the commencement ... to the consummation ... is relevant.” Weller v. Commissioner, 270 F.2d 294, 297 (3d Cir.1959); accord Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). The inquiry into whether the taxpayer’s transactions had sufficient economic substance to be respected for tax purposes turns on both the “objective economic substance of the transactions” and the “subjective business motivation” behind them. Casebeer v. Commissioner, 909 F.2d 1360, 1363 (9th Cir.1990); accord Lerman, 939 F.2d at 53-54 (noting that sham transaction has been defined as a transaction that “has no business purpose or economic effect other than the creation of tax deductions” and holding that taxpayer was not entitled “to claim ‘losses’ when none in fact were sustained”). However, these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a “rigid two-step analysis,” but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes. Casebeer, 909 F.2d at 1363; accord James v. Commissioner, 899 F.2d 905, 908-09 (10th Cir.1990); Bose v. Commissioner, 868 F.2d 851, 854 (6th Cir.1989). For the reasons that follow, we find that both the objective analysis of the actual economic consequences of ACM’s transac tions and the subjective analysis of their intended purposes support the Tax Court’s conclusion that ACM’s transactions, did not have sufficient economic substance to be respected for" }, { "docid": "17564591", "title": "", "text": "469-70, 55 S.Ct. 266. AEP’s statutory intendment test would effectively swallow up the economic substance test and vitiate the sham transaction doctrine. A transaction which has no factual reality or economic substance can never be the thing the statute intended even though the form of the transaction satisfies all of the requirements of the statute. AEP argues that the Supreme Court’s opinion in Hanover Bank v. Comm’r, 369 U.S. 672, 82 S.Ct. 1080, 8 L.Ed.2d 187 (1962) and the Sixth Circuit’s opinion in Humphreys v. Comm’r, 301 F.2d 33 (6th Cir.1962) are “clear examples of the application of the statutory intendment standard.” Plaintiffs Post-Trial Memorandum at p. 35. However, neither of these cases support AEP’s argument. In Hanover Bank, the question before the Court was one of pure statutory construction. The Court specifically noted that the “Government does not contend that the transactions entered into by the petitioners were a sham without any business purpose except to gain a tax advantage.” Hanover Bank, 369 U.S. at 681, 82 S.Ct. 1080. In Humphreys, the Sixth Circuit specifically found that “[i]t cannot be controverted that the purchase of the bonds and the gifts to charity were real genuine transactions though motivated by tax considerations.” Humphreys, 301 F.2d at 33-34. Neither case involved the application of the sham transaction doctrine. The taxpayers in CM. Holdings, and Winn-Dixie raised arguments similar to AEP’s statutory intendment argument and they were rejected. See C.M. Holdings, 254 B.R. at 636 and Winn-Dixie, 113 T.C. at 290, 294. This court agrees. Courts have recognized two basic types of sham transactions: (1) “shams in fact,” in which the reported transactions never occurred; and (2) “shams in substance” in which the transactions “actually occurred but which lack the substance their form represents.” Kirchman v. Comm’r, 862 F.2d 1486, 1492 (11th Cir.1989); see also ACM P’ship, 157 F.3d at 247 n. 30; Lerman v. Comm’r, 939 F.2d 44, 49 n. 6 (3d Cir.1991). The government claims that the loading dividends, policy loans, and partial withdrawals under AEP’s MBL COLI plan are factual shams and that the AEP MBL COLI plan as" }, { "docid": "5466125", "title": "", "text": "look beyond the form of a transaction and to determine whether its substance is of such a nature that expenses or losses incurred in connection with it are deductible under an applicable section of the Internal Revenue Code. If a transaction’s form complies with the Code’s requirements for deductibility, but the transaction lacks the factual or economic substance that form represents, then expenses or losses incurred in connection with the transaction are not deductible. The sham transaction doctrine emerged from the Supreme Court’s decision in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). In Gregory, the Court affirmed the Commissioner in denying deductions claimed by taxpayers for losses and expenses incurred in a corporate reorganization. The taxpayers had followed each step required by the Code for the reorganization. Nevertheless, the Court held these losses nondeductible. The Court held that this transaction was a “mere device” for the “consummation of a preconceived plan” and not a reorganization within the intent of the Code as it then existed. Id. at 469, 55 S.Ct. at 267-268. Because the transaction lacked economic substance, as opposed to formal reality, it was not “the thing which the statute intended.” Id. The sham transaction doctrine has become widely accepted, see generally B. Bittker, Federal Taxation of Income, Estates and Gifts p 4.3.3 (1981 and Supp. 1988), as has the general notion that courts should look at the substance of a transaction rather than just its form. See generally Frank Lyon Co. v. United States, 435 U.S. 561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (Court looked at economic substance or reality of sale and leaseback transactions); Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960) (interest expense deductions disallowed because only thing of substance to be realized in transaction was tax deduction); Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945) (creating step transaction doctrine, whereby courts must consider all steps of transaction in light of entire transaction, so that substance of transaction will control over form of each step). While" }, { "docid": "13475988", "title": "", "text": "was motivated by the tax aspects of the CARDS transaction. To believe Mr. Kerman’s story, one must believe that he paid over $600,000 in fees and costs to receive “financing” of $784,750. As a capable businessman and prudent investor, Mr. Kerman knew or should have known that the CARDS transaction was just too good to be true. And because Kerman had overstated his basis in the foreign currency obtained in the transaction by more than 400 percent, the court imposed the “gross” valuation misstatement penalty pursuant to § 6662(h). This appeal followed. II A In examining whether Kerman’s claimed tax loss should be disallowed because it lacked economic substance, “the district court’s findings of fact are reviewed for clear error. The district court’s ultimate conclusion that a transaction is or is not an economic sham is reviewed de novo.” Dow Chem. Co. v. United States, 435 F.3d 594, 599 (6th Cir.2006) (citation omitted) (citing Am. Elec. Power Co. v. United States, 326 F.3d 737, 741-42 (6th Cir.2003)). That is, “while the factual findings underlying a sham determination are reviewed for clear error, the legal standards employed and the ultimate conclusion are reviewed de novo.” Dow Chem. Co., 435 F.3d at 599 n. 8 (citing Kennedy v. Comm’r, 876 F.2d 1251, 1254 (6th Cir.1989); Rose v. Comm’r, 868 F.2d 851, 853 (6th Cir.1989)). B Section 165 of the Internal Revenue Code permits “as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.” 26 U.S.C. § 165(a). But the treasury regulations caution, “Only a bona fide loss is allowable. Substance and not mere form shall govern in determining a deductible loss.” 26 C.F.R. § 1.165-l(b). And “the burden of clearly showing the right to the claimed deduction is on the taxpayer.” Dow Chem. Co., 435 F.3d at 599 (citing INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992)). “To be valid,” this Court instructs, “an asserted deduction must satisfy both components of a two-part [“Mahoney ”] test. The threshold question is whether the transaction has economic substance. If" }, { "docid": "23625312", "title": "", "text": "before this court is whether the transactions implementing the J & G strategy were properly disregarded under the economic substance doctrine. We conclude that they were. How a transaction is characterized is a question of law we review de novo. Accordingly, we review the trial court’s application of the economic substance doctrine without deference. Coltec Industries, Inc. v. U.S., 454 F.3d 1340, 1357 (Fed.Cir.2006). The trial court’s underlying factual findings are reviewed for clear error. Jade Trading, LLC ex rel. Ervin v. United States, 598 F.3d 1372, 1376 (Fed.Cir.2010). Because deductions are a matter of legislative grace, the taxpayer has the burden of proving that a transaction had economic substance by a preponderance of evidence. Id. The economic substance doctrine seeks to distinguish between structuring a real transaction in a particular way to obtain a tax benefit, which is legitimate, and creating a transaction to generate a tax benefit, which is illegitimate. Coltec, 454 F.3d at 1357; see also Klamath Strategic Invest. Fund ex rel. St. Croix v. United States, 568 F.3d 537, 543-44 (5th Cir.2009). Under this doctrine, we disregard the tax consequences of transactions that comply with the literal terms of the tax code, but nonetheless lack “economic reality.” Coltec, 454 F.3d at 1355-56; see also Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978); Klamath, 568 F.3d at 544; United Parcel Serv. of Am., Inc. v. Comm’r, 254 F.3d 1014, 1018 (11th Cir.2001); ACM P’ship v. Comm’r, 157 F.3d 231, 247 (3d Cir.1998); James v. Comm’r, 899 F.2d 905, 908-09 (10th Cir.1990). Such transactions include those that have no business purpose beyond reducing or avoiding taxes, regardless of whether the taxpayer’s subjective motivation was tax avoidance. Coltec, 454 F.3d at 1355 (citing Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406 (1940)); Ballagh v. United States, 331 F.2d 874, 877-78 (Ct.Cl.1964); see also Frank Lyon, 435 U.S. at 583-84, 98 S.Ct. 1291; Klamath, 568 F.3d at 544. We also disregard transactions shaped solely by tax-avoidance features. Frank Lyon, 435 U.S. at 583-84, 98 S.Ct. 1291;" }, { "docid": "5466127", "title": "", "text": "it is true that a taxpayer can structure a transaction to minimize tax liability under the Internal Revenue Code, Gregory, 293 U.S. at 469, 55 S.Ct. at 267-268, that transaction must nevertheless have economic substance in order to be “the thing which the statute intended.” Id. Taxpayers deducted the losses in this case under I.R.C. § 165. I.R.C. § 165(a) allows losses in general to be deducted from a taxpayer’s taxable income. I.R.C. § 165(c)(2) limits those deductible losses to “losses incurred in transactions, not in connection with a trade or business, entered into for profit.” This statute was clearly aimed at economically-motivated, or profit-motivated, transactions. Miller v. Commissioner, 836 F.2d 1274, 1278-79 (10th Cir.1988). If a transaction is not motivated by profit or economic advantage, then that transaction is a sham for purposes of analysis under I.R.C. § 165(c)(2). See Boynton v. Commissioner, 649 F.2d 1168, 1172 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); cf. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). Naturally, the profit or economic motivation cannot be merely tax benefits. Although Section 108 of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, 630 (1984) (“Section 108”), provides for deduction of losses incurred in closing one leg of a straddle transaction, in order for Section 108 to apply, the underlying transaction must not be a sham. Miller, 836 F.2d at 1278-79; see also Neely v. United States, 775 F.2d 1092, 1094 (9th Cir.1985). The Eleventh Circuit recently affirmed a tax court decision holding that Section 108 does not apply where the transactions involved are shams. Forseth v. Commissioner, 85 T.C. 127 (1985) (holding commodity straddle transactions shams because of lack of economic substance), affd without published opinion sub nom. Wooldridge v. Commissioner, 800 F.2d 266 (11th Cir.1986). The analysis of whether something is a sham, then, must occur before analysis of the for-profit test of I.R.C. § 165(c)(2) and Section 108. See Sochin v. Commissioner, 843 F.2d 351, 353-54 n. 6 (9th Cir.1988) (Section 108 does not" }, { "docid": "11919268", "title": "", "text": "has \"few bright lines,” but clearly applies to \" 'transactions whose sole function is to produce tax deductions’ ”) (quoting Kirchman v. Comm’r of Internal Revenue, 862 F.2d 1486, 1492 (11th Cir. 1989)); ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999) (\"these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a rigid two-step analysis, but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes”); James v. Comm’r of Internal Revenue, 899 F.2d 905, 908-09 (10th Cir.1990) (referring to this as the \"better approach”); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989) (\"the essential inquiry is whether the transaction had any practicable economic effect other than the creation of economic tax losses”). This more • generic approach to applying the sham transaction doctrine is more in accord with Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978), where the Supreme Court stated that a transaction will be accorded tax recognition only if it has “economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.” . In Golsen v. Comm’r of Internal Revenue, 54 T.C. 742, 1970 WL 2191 (1970), aff'd, 445 F.2d 985 (10th Cir.1971), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971), the Tax Court held it was bound “to follow a Court of Appeals decision which is squarely [on] point where appeal from our decision lies to that Court of Appeals and to that court alone.” 54 T.C. at 757. . Various cases have rejected claims that the TEFRA partnership provisions violate due process, holding that those provisions provide appropriate notice and an opportunity to present their objections. See, e.g., Transpac Drilling Venture 1982-12 v. Comm'r of Internal Revenue, 147 F.3d 221," }, { "docid": "22237577", "title": "", "text": "a transaction will be accorded tax recognition only if it has “economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.” Id. at 583-84, 98 S.Ct. 1291. Subsequent case law developed two predominant tests for identifying a sham transaction. In Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89 (4th Cir.1985), the Fourth Circuit adopted a two-prong standard, stating that “[t]o treat a transaction as a sham, the court must find that the taxpayer was motivated by no business purposes other than obtaining tax benefits in entering the transaction, and that the transaction has no economic substance because no reasonable possibility of a profit exists.” Id. at 91. The business purpose prong inquires into the taxpayer’s subjective motive for entering the transaction. Id. at 92. The economic-substance prong “requires an objective determination of whether a reasonable possibility of profit from the transaction existed apart from the tax benefits.” Id. at 94. The other test, adopted by a majority of the circuits, states that “the[ ] distinct aspects of the economic sham theory inquiry do not constitute discrete prongs of a rigid two-step analysis, but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes.” ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999); see also Sochin v. Comm’r of Internal Revenue, 843 F.2d 351, 354 (9th Cir.1988), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989); James v. Comm’r of Internal Revenue, 899 F.2d 905, 908-09 (10th Cir.1990); Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir.2001). “The sham transaction doctrine has few bright lines, but ‘[i]t is clear that transactions whose sole function is to produce tax deductions are substantive shams.’ ” Winn-Dixie Stores, 254" }, { "docid": "17564588", "title": "", "text": "as a whole and each element thereof to determine if the substance of the transaction is consistent with its form. See ACM P’ship v. Comm’r, 157 F.3d 231, 247 (3rd Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999). If the form of a transaction complies with the Code’s requirements for deductibility, but the transaction neverthe less lacks factual or economic substance, then expenses or losses incurred in connection with the transaction are not deductible. See Knetsch v. United States, 364 U.S. 361, 369, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960); United States v. Wexler, 31 F.3d 117, 122 (3rd Cir.1994), cert. denied, 513 U.S. 1190, 115 S.Ct. 1251, 131 L.Ed.2d 133 (1995). The burden of proof is on the taxpayer to show that the form of the transaction reflects its substance. National Starch and Chem. Corp. v. Comm’r, 918 F.2d 426, 429 (3rd Cir.1990) (“burden is on the taxpayer to show that the expenses are deductible”) aff'd sub nom INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992); Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir.1986). While a taxpayer can legitimately structure a transaction to minimize tax liability under the Code, the transaction must nevertheless have factual and economic sub stance. See Gregory, 293 U.S. at 469, 55 S.Ct. 266. AEP contends that the sham transaction doctrine includes a threshold requirement which requires the court i¡o first determine “whether the thing done was the thing intended by the statute.” Plaintiffs Posi>-Trial Memorandum at p. 32. According to AEP, if the court determines that the thing done was indeed the thing intended, the court need not and should not proceed to examine the issue of whether the transaction has economic substance. AEP argues that Congress has, over the years, carefully tailored the tax laws relating to the favorable treatment of life insurance, and since AEP’s COLI plan satisfies all of the statutory requirements for the tax favored treatment of inside buildup, death benefits, and policy loan deductions, the plan satisfies the statutory intendment test and the judicial inquiry is" }, { "docid": "13475989", "title": "", "text": "sham determination are reviewed for clear error, the legal standards employed and the ultimate conclusion are reviewed de novo.” Dow Chem. Co., 435 F.3d at 599 n. 8 (citing Kennedy v. Comm’r, 876 F.2d 1251, 1254 (6th Cir.1989); Rose v. Comm’r, 868 F.2d 851, 853 (6th Cir.1989)). B Section 165 of the Internal Revenue Code permits “as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.” 26 U.S.C. § 165(a). But the treasury regulations caution, “Only a bona fide loss is allowable. Substance and not mere form shall govern in determining a deductible loss.” 26 C.F.R. § 1.165-l(b). And “the burden of clearly showing the right to the claimed deduction is on the taxpayer.” Dow Chem. Co., 435 F.3d at 599 (citing INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992)). “To be valid,” this Court instructs, “an asserted deduction must satisfy both components of a two-part [“Mahoney ”] test. The threshold question is whether the transaction has economic substance. If the answer is yes, the question becomes whether the taxpayer was motivated by profit to participate in the transaction.” Illes v. Comm’r, 982 F.2d 163, 165 (6th Cir.1992) (citing Rose, 868 F.2d at 853; Mahoney v. Comm’r, 808 F.2d. 1219, 1220 (6th Cir.1987)). Part one of the Mahoney test is objective: “If the transaction lacks economic substance, then the deduction must be disallowed without regard to the ‘niceties’ of the taxpayer’s intent.” Illes, 982 F.2d at 166 (quoting Mahoney, 808 F.2d at 1220). The focus under part one is “the transaction, not the taxpayer.” Id. Only at part two does a court focus on the taxpayer’s subjective intent. Id. A transaction that lacks economic substance is a “sham.” Dow Chem. Co., 435 F.3d at 599. “The proper standard in determining if a transaction is a sham is whether the transaction has any practicable economic effects other than the creation of income tax losses.” Id. (quoting Rose, 868 F.2d at 853). That is, if the tax benefits are put aside, do the expected benefits exceed the" }, { "docid": "17564587", "title": "", "text": "positive cash flows totaling over half a billion dollars at the end of twenty years. The sham transaction doctrine The government contends that the loading dividends, policy loans, and partial withdrawals that are all components of AEP’s MBL COLI plan are factual shams. The sham transaction doctrine originated with the Supreme Court decision of Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). In Gregory, the Court affirmed the Commissioner’s denial of deductions claimed by taxpayers for losses and expenses incurred in a corporate reorganization. Although the taxpayers had followed each step required by the Internal Revenue Code for the reorganization, the Court nonetheless held these losses nondeductible, finding that the transaction was a “mere device” for the “consummation of a preconceived plan” and not a reorganization within the intent of the code as it then existed. Id. at 469, 55 S.Ct. 266. Because the transaction lacked economic substance, it was not “the thing which the statute intended.” Id. The sham transaction doctrine requires the court to examine a challenged transaction as a whole and each element thereof to determine if the substance of the transaction is consistent with its form. See ACM P’ship v. Comm’r, 157 F.3d 231, 247 (3rd Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999). If the form of a transaction complies with the Code’s requirements for deductibility, but the transaction neverthe less lacks factual or economic substance, then expenses or losses incurred in connection with the transaction are not deductible. See Knetsch v. United States, 364 U.S. 361, 369, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960); United States v. Wexler, 31 F.3d 117, 122 (3rd Cir.1994), cert. denied, 513 U.S. 1190, 115 S.Ct. 1251, 131 L.Ed.2d 133 (1995). The burden of proof is on the taxpayer to show that the form of the transaction reflects its substance. National Starch and Chem. Corp. v. Comm’r, 918 F.2d 426, 429 (3rd Cir.1990) (“burden is on the taxpayer to show that the expenses are deductible”) aff'd sub nom INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 112 S.Ct. 1039, 117" }, { "docid": "17564589", "title": "", "text": "L.Ed.2d 226 (1992); Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir.1986). While a taxpayer can legitimately structure a transaction to minimize tax liability under the Code, the transaction must nevertheless have factual and economic sub stance. See Gregory, 293 U.S. at 469, 55 S.Ct. 266. AEP contends that the sham transaction doctrine includes a threshold requirement which requires the court i¡o first determine “whether the thing done was the thing intended by the statute.” Plaintiffs Posi>-Trial Memorandum at p. 32. According to AEP, if the court determines that the thing done was indeed the thing intended, the court need not and should not proceed to examine the issue of whether the transaction has economic substance. AEP argues that Congress has, over the years, carefully tailored the tax laws relating to the favorable treatment of life insurance, and since AEP’s COLI plan satisfies all of the statutory requirements for the tax favored treatment of inside buildup, death benefits, and policy loan deductions, the plan satisfies the statutory intendment test and the judicial inquiry is at an end. AEP’s statutory intendment test is taken from the following language in Gregoi'y: The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended. Gregory, 293 U.S. at 469, 55 S.Ct. 266 (citations omitted). AEP reads too much into this statement. Certainly, the Court did not mean that satisfying all of the statutory requirements precludes a court from examining either the factual reality or the economic substance of the questioned transaction. Indeed, in Gregory, the Supreme Court went on to note.- “[n]o doubt, a new and valid corporation was created. But that corporation was nothing more than a contrivance,” and “[t]he whole undertaking, though conducted according to the terms [of the statute] was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else.” Id. at" }, { "docid": "17564592", "title": "", "text": "specifically found that “[i]t cannot be controverted that the purchase of the bonds and the gifts to charity were real genuine transactions though motivated by tax considerations.” Humphreys, 301 F.2d at 33-34. Neither case involved the application of the sham transaction doctrine. The taxpayers in CM. Holdings, and Winn-Dixie raised arguments similar to AEP’s statutory intendment argument and they were rejected. See C.M. Holdings, 254 B.R. at 636 and Winn-Dixie, 113 T.C. at 290, 294. This court agrees. Courts have recognized two basic types of sham transactions: (1) “shams in fact,” in which the reported transactions never occurred; and (2) “shams in substance” in which the transactions “actually occurred but which lack the substance their form represents.” Kirchman v. Comm’r, 862 F.2d 1486, 1492 (11th Cir.1989); see also ACM P’ship, 157 F.3d at 247 n. 30; Lerman v. Comm’r, 939 F.2d 44, 49 n. 6 (3d Cir.1991). The government claims that the loading dividends, policy loans, and partial withdrawals under AEP’s MBL COLI plan are factual shams and that the AEP MBL COLI plan as a whole was a sham in substance because it was devoid of economic substance apart from the policy loan interest deductions. Sham in fact doctrine as applied to components of the AEP COLI PLAN Policy loans The government contends that the policy loans were factual shams. Here, in addition to the decisional law relating to the sham transaction doctrine, the government relies on a separate body of case law defining interest and indebtedness for the purpose of determining the deductibility of interest under I.R.C. § 163. This line of cases stands for the proposition that interest and indebtedness must be real in order to support a deduction. See Knetsch, 364 U.S. at 369, 81 S.Ct. 132; Wexler, 31 F.3d at 122; Goldberg, 789 F.2d at 1343; Bridges v. Comm’r, 325 F.2d 180, 181-82 (4th Cir.1963). Section 163 allows a deduction for “interest paid or accrued within the taxable year on indebtedness.” I.R.C. § 163. “Interest” represents compensation for the use or forbearance of money. Old Colony R. Co. v. Comm’r, 284 U.S. 552, 561-62, 52" }, { "docid": "22237578", "title": "", "text": "by a majority of the circuits, states that “the[ ] distinct aspects of the economic sham theory inquiry do not constitute discrete prongs of a rigid two-step analysis, but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes.” ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999); see also Sochin v. Comm’r of Internal Revenue, 843 F.2d 351, 354 (9th Cir.1988), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989); James v. Comm’r of Internal Revenue, 899 F.2d 905, 908-09 (10th Cir.1990); Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir.2001). “The sham transaction doctrine has few bright lines, but ‘[i]t is clear that transactions whose sole function is to produce tax deductions are substantive shams.’ ” Winn-Dixie Stores, 254 F.3d at 1316 (quoting Kirchman v. Comm’r of Internal Revenue, 862 F.2d 1486, 1492 (11th Cir.1989)). Courts of appeals following the approach followed in most of the jurisdictions to consider the issue have held that while a taxpayer’s subjective business purpose or profit motive may be relevant to the sham transaction inquiry, the lack of a subjective profit motive is not required to assess interest at the enhanced rate under Section 6621(c). See Thomas v. United States of America, 166 F.3d 825, 833 (6th Cir.1999) (“by its plain language I.R.C. § 6621(c) imposes no inquiry into the taxpayer’s investment motive when the transaction is found to be a sham”); Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir.1996) (no basis for reading a separate state of mind requirement into the sham transaction test for purposes of Section 6621(c)(3)(A)(v)); Estate of Carber ry v. Comm’r of Internal Revenue, 933 F.2d 1124, 1129-30 (2d Cir.1991) (upholding enhanced interest under Section 6621(c) without considering the taxpayer’s motive); Karr v. Comm’r of Internal Revenue, 924 F.2d" }, { "docid": "5466126", "title": "", "text": "S.Ct. at 267-268. Because the transaction lacked economic substance, as opposed to formal reality, it was not “the thing which the statute intended.” Id. The sham transaction doctrine has become widely accepted, see generally B. Bittker, Federal Taxation of Income, Estates and Gifts p 4.3.3 (1981 and Supp. 1988), as has the general notion that courts should look at the substance of a transaction rather than just its form. See generally Frank Lyon Co. v. United States, 435 U.S. 561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (Court looked at economic substance or reality of sale and leaseback transactions); Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960) (interest expense deductions disallowed because only thing of substance to be realized in transaction was tax deduction); Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945) (creating step transaction doctrine, whereby courts must consider all steps of transaction in light of entire transaction, so that substance of transaction will control over form of each step). While it is true that a taxpayer can structure a transaction to minimize tax liability under the Internal Revenue Code, Gregory, 293 U.S. at 469, 55 S.Ct. at 267-268, that transaction must nevertheless have economic substance in order to be “the thing which the statute intended.” Id. Taxpayers deducted the losses in this case under I.R.C. § 165. I.R.C. § 165(a) allows losses in general to be deducted from a taxpayer’s taxable income. I.R.C. § 165(c)(2) limits those deductible losses to “losses incurred in transactions, not in connection with a trade or business, entered into for profit.” This statute was clearly aimed at economically-motivated, or profit-motivated, transactions. Miller v. Commissioner, 836 F.2d 1274, 1278-79 (10th Cir.1988). If a transaction is not motivated by profit or economic advantage, then that transaction is a sham for purposes of analysis under I.R.C. § 165(c)(2). See Boynton v. Commissioner, 649 F.2d 1168, 1172 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); cf. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266," }, { "docid": "11919267", "title": "", "text": "tax years prior to 1989. . Section 465 was added to the Code in 1976 to combat abuse of tax shelters caused by nonre-course financing, and other situations in which taxpayers were effectively immunized from any realistic possibility of suffering. See S.Rep. No. 94-938, at 47-49 (1976), U.S.Code Cong. & Admin.News 1976, p. 2886; see also Comm’r erf Internal Revenue v. Tufts, 461 U.S. 300, 309 n. 7, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983); Pritchett v. Comm’r of Internal Revenue, 827 F.2d 644, 646 (9th Cir.1987). . The Treasury Regulations under section 6231 leave this issue somewhat unresolved in stating that \"[t]he application of the at-risk limitation under section 465 to a partner with respect to a loss incurred by a partnership is an affected item to the extent that it is not a partnership item.” Treas. Reg. § 301.6231(a)(5)-1(c). . See also Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir. 2001), cert. denied, 535 U.S. 986, 122 S.Ct. 1537, 152 L.Ed.2d 464 (2002) (noting that the doctrine has \"few bright lines,” but clearly applies to \" 'transactions whose sole function is to produce tax deductions’ ”) (quoting Kirchman v. Comm’r of Internal Revenue, 862 F.2d 1486, 1492 (11th Cir. 1989)); ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999) (\"these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a rigid two-step analysis, but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes”); James v. Comm’r of Internal Revenue, 899 F.2d 905, 908-09 (10th Cir.1990) (referring to this as the \"better approach”); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989) (\"the essential inquiry is whether the transaction had any practicable economic effect other than the creation of economic tax losses”). This more • generic approach to applying the sham transaction doctrine is more in accord with Frank Lyon Co." }, { "docid": "5466124", "title": "", "text": "is still essentially factual.”). Nevertheless, we review the tax court’s conclusions de novo. In this case, the tax court assumed as true the facts alleged for purposes of its analysis. The court itself stated that it was focusing on an issue of law, i.e., whether taxpayers’ allegations, if proven, would be sufficient to achieve the tax results desired. Glass, 87 T.C. at 1172. The court held that these were sham transactions as a matter of law. Stated as such, the standard of review is de novo. See Miller v. Commissioner, 836 F.2d 1274, 1277 (10th Cir.1988) (legal conclusions by tax court reviewed de novo); see generally Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978) (“The general characterization of a transaction for tax purposes is a question of law subject to review.”); Georgia Power Co. v. Baker, 830 F.2d 163 (11th Cir.1987) (issue of law reviewed de novo). B. Sham Transaction Doctrine The sham transaction doctrine requires courts and the Commissioner to look beyond the form of a transaction and to determine whether its substance is of such a nature that expenses or losses incurred in connection with it are deductible under an applicable section of the Internal Revenue Code. If a transaction’s form complies with the Code’s requirements for deductibility, but the transaction lacks the factual or economic substance that form represents, then expenses or losses incurred in connection with the transaction are not deductible. The sham transaction doctrine emerged from the Supreme Court’s decision in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). In Gregory, the Court affirmed the Commissioner in denying deductions claimed by taxpayers for losses and expenses incurred in a corporate reorganization. The taxpayers had followed each step required by the Code for the reorganization. Nevertheless, the Court held these losses nondeductible. The Court held that this transaction was a “mere device” for the “consummation of a preconceived plan” and not a reorganization within the intent of the Code as it then existed. Id. at 469, 55" }, { "docid": "19008973", "title": "", "text": "“tax shelter.” The transaction at issue, Plaintiff argues, was entered into by an experienced investor in distressed assets who was seeking to profit from a partnership that owned distressed Chinese debt. According to Plaintiff, the transaction was structured to optimize the tax consequences of the investment, consistent with the Internal Revenue Code and regulations. The Government contends that Beal and his agents engaged in an abusive tax shelter, referred to by the IRS as a distressed asset/debt (“DAD”) transaction. This DAD tax shelter, the Government argues, was designed to shift to Beal the supposed tax benefits associated with losses on the Chinese NPLs that actually were incurred by an arm of the Chinese government. In effect, the Government argues, Beal is trying to import a loss suffered by the Chinese government for use on his U.S. tax return. A. Burden of Proof Absent an agreement or a determination that there has been a shift of the burden of proof to the government under 26 U.S.C. § 7491, the general rule is that the taxpayer bears the ultimate burden of proof in tax cases. See Welch v. Helvering, 290 U.S. Ill, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933); Woodall v. Comm’r, 964 F.2d 361, 363 (5th Cir.1992) (“A taxpayer challenging the IRS’s disallowance of a deduction bears the burden of proof.”). It is well settled that “an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992) (quoting Interstate Transit Lines v. Comm’r, 319 U.S. 590, 593, 63 S.Ct. 1279, 87 L.Ed. 1607 (1943)). Section 7491 shifts the burden of proof to the Government on any factual issue relevant to ascertaining the liability of a taxpayer if the taxpayer: (1) introduces credible evidence on disputed facts; (2) complies with the Internal Revenue Code’s substantiation and record maintenance requirements; (3) cooperates with reasonable requests from the IRS for witnesses, information, documents, meetings, and interviews; and (4) in the case of" }, { "docid": "17810513", "title": "", "text": "P’ship v. United States, 314 F.3d 625, 631 (D.C.Cir.2003); In re CM Holdings, Inc., 301 F.3d 96, 102 (3d Cir.2002); United Parcel Serv. of Am., Inc. v. Comm’r of Internal Revenue, 254 F.3d 1014, 1018 (11th Cir.2001). While the doctrine may well also apply if the taxpayer’s sole subjective motivation is tax avoidance even if the transaction has economic substance, a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance. Second, when the taxpayer claims a deduction, it is the taxpayer who bears the burden of proving that the transaction has economic substance. In describing the history of the economic substance doctrine, our predecessor court in Rothschild stated, “Gregory v. Helvering requires that a taxpayer carry an unusually heavy burden when he attempts to demonstrate that Congress intended to give favorable tax treatment to the kind of transaction that would never occur absent the motive of tax avoidance.” 407 F.2d at 411 (quoting Diggs v. Comm’r of Internal Revenue, 281 F.2d 326, 330 (2d Cir.1960)). Other circuits have similarly held that “[ejconomic substance is a prerequisite to the application of any Code provision allowing deductions [and therefore that] ... [t]he taxpayer has the burden of showing that the form of the transaction accurately reflects its substance, and the deductions are permissible.” In re CM Holdings, Inc., 301 F.3d at 102. Third, the economic substance of a transaction must be viewed objectively rather than subjectively. The Supreme Court cases and our predecessor court’s cases have repeatedly looked to the objective economic reality of the transaction in applying the economic substance doctrine. While the taxpayer’s subjective motivation may be pertinent to the existence of a tax avoidance purpose, all courts have looked to the objective reality of the transaction is assessing its economic substance. See, e.g., Black & Decker, 436 F.3d at 441-42 (noting that economic substance inquiry requires an “objective determination of whether a reasonable possibility of profit from the transaction existed”) (internal quotation marks omitted, first two emphases added); Dow Chem. Co., 435 F.3d at 599; In re CM" } ]

[ { "docid": "22222141", "title": "", "text": "a violation of the Act.” While it does not define this standard or discuss the First Amendment concerns involved with respect to the filing of nonfrivolous suits, the memorandum provides that “given the sensitivity and complexity of the issues relating to such litigation, all situations involving claims that litigation amounts to a violation of [§ 3617 of the FHA] must be cleared with Headquarters before the complaint is filed.” More broadly, the memorandum states that where FHA concerns “intersect with First Amendment protections,” HUD officials must defer to the latter: “the Department chooses to err on the side of the First Amendment.” The HUD officials argue that in light of these materials, the district court erred in declining to dismiss the plaintiffs’ request for injunctive relief on the ground of standing. We disagree. Standing is examined at “the commencement of the litigation.” See Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, _ - _, 120 S.Ct. 693, 698-99, 145 L.Ed.2d 610 (2000). At the time the plaintiffs filed their complaint, the Achtenberg memorandum had been in effect for only a month and was scheduled to expire in less than a year. The recent implementation of such a temporary policy was insufficient to eliminate the plaintiffs’ standing to seek prospective relief. As this case has progressed, however, the policy has become entrenched. It was therefore appropriate for the district court to analyze the officials’ factual Rule 12(b)(1) challenge as a question of mootness, not standing. The Supreme Court has made clear that the standard for proving that a case has been mooted by a defendant’s voluntary conduct is “stringent”: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Id. Friends of the Earth, _ U.S. at _, 120" } ]

[ { "docid": "13293564", "title": "", "text": "delegated to the FEC under the Act. Moreover, the regulations reflect a permissible construction of the statute, indeed one that easily falls within the reasonable ambit of the statutory terms. We reject Nader’s challenge and affirm the district court judgment dismissing his suit. So ordered. No costs are awarded. . The district court found that the individual voter plaintiffs lacked standing. . The FEC makes no claim that the plaintiffs have failed to meet prudential standing requirements. . A footnote in the concurring opinion suggests that we might err in assessing Nader’s standing from this chronological point of reference; it points to a Tenth Circuit case, Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995), holding that a plaintiff must not only have standing at the time he brings suit, but must retain it throughout the litigation. The case has rightly been criticized for ignoring language in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), clearly indicating that standing is to be \"assessed under the facts existing when the complaint is filed.” Klamath Siskiyou Wildlands Ctr. v. Babbitt, No. CV-99-1044-ST, 2000 WL 236366, at *3, 2000 U.S. Dist. LEXIS 2269, at *9 (D.Or. Feb. 15, 2000) (quoting Lujan, 504 U.S. at 571, n. 4, 112 S.Ct. 2130). The problem with the approach taken in Powder River is that it conflates questions of standing with questions of mootness; while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (\"[Standing is based on the facts as they existed at the time the lawsuit was filed.”); White v. Lee, 227 F.3d 1214, 1236 (9th Cir.2000) (same); Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C.Cir.2000) (same); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69, 108 S.Ct. 376, 98" }, { "docid": "11131050", "title": "", "text": "standing de novo. Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 635 (5th Cir.2012). The parties seeking access to federal court bear the burden of establishing their standing. Id. “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The first is an “injury in fact,” which is a “concrete and particularized ... invasion of a legally protected interest.” Id. (citations omitted). The second is that “there must be a causal connection between the injury and the conduct complained of[;] the injury has to be fairly ... traee[able] to the challenged action of the defendant.” Id. (second alteration in original) (citation and quotation marks omitted). Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (citation and internal quotation marks omitted). Only injury-in-fact is at issue in this appeal. “While the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citations omitted). Mootness, however, is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (citation omitted). When “named plaintiffs will not benefit from a favorable ruling on the question implicating injunctive relief, we hold that th[e] question is moot as to them.” Pederson v. La. State Univ., 213 F.3d 858, 874 (5th Cir.2000). Under the doctrine of associational standing, an association may have standing to bring suit on behalf of its members when: [1] its members would otherwise have standing to sue in their own right; [2] the interests it seeks to protect are germane to the organization’s purpose; and [3] neither the claim asserted nor the" }, { "docid": "23341181", "title": "", "text": "the outcome throughout the litigation or the controversy becomes moot and unjusticiable despite the court’s retention of subject matter jurisdiction. See Matos v. Clinton School District, 367 F.3d 68, 71 (1st Cir.2004) (a cognizable case or controversy must exist not only at the outset of the lawsuit, but at all stages of the litigation, including appeal). The distinction between standing and mootness is not always easily grasped. “The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Becker v. Federal Election Commission, 230 F.3d 381, 387 n. 3 (1st Cir.2000) (citation omitted). It will be recalled that in responding to the invitation to attend the inaugural meeting of the 1999-2000 scouting year, Mari-ka’s mother wrote that Marika would not be rejoining the Girl Scouts. By the time the amended complaint was filed in the district court on November 1, 2000, Marika had been out of scouting for more than a year. Nothing in the complaint indicated that Marika had any desire to resume her scouting career. Both Marika’s mother, in her July 2001 deposition, and Marika’s attorney, at an April 2002 status conference with the court, made it abundantly clear that Marika wanted nothing further to do with the Girl Scouts. To demonstrate that a case is moot, defendants must show that the issues involved are no longer “ ‘live’ or the parties lack .a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). A court cannot hear an action that loses “its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (per curiam). To demonstrate the prospect of future harm, the essential prerequisite for equitable relief, a" }, { "docid": "3863717", "title": "", "text": "a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Mootness can be characterized as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists. If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction. Foster v. Carson, 347 F.3d 742, 745 (9th Cir.2003) (citations and quotations omitted). Thus, the central inquiry in any mootness challenge is whether changes in the circumstances existing when the action was filed have forestalled any meaningful relief. “[T]he question is not whether the precise relief sought at the time an application for injunctive relief was filed is still available. The question is whether there can be any effective relief.” West v. Secretary of Dep’t. of Transportation, 206 F.3d 920, 925 (9th Cir.2000); see also San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th Cir.2002). So long as the court can grant some effective relief, it does not matter that the relief originally sought is unavailable due to changed circumstances. See Church of Scientology of Calif, v. United States, 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). Here, in effect, TBC asserts that by removing or remediating the barriers at Taco Bell 4518, it has voluntarily ceased the challenged conduct. A request for prospective injunctive relief will be mooted by a defendant’s voluntary compliance only if the defendant meets the “formidable burden” of demonstrating that it is “absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190, 120 S.Ct. 693; see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 221, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000); Rosemere Neighborhood" }, { "docid": "13293566", "title": "", "text": "L.Ed.2d 306 (1987) (Scalia, L, concurring) (\"Subject matter jurisdiction depends on the state of things at the time of the action brought; if it existed when the suit was brought, subsequent events cannot oust the court of jurisdiction.”) (internal quotation marks and citations omitted). \"The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as 'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 708-09, 145 L.Ed.2d 610 (2000) (citations omitted). But questions of standing and questions of mootness are distinct, and it is important to treat them separately. See id. at 709-10. We address whether Nader's claim is moot below. . The concurrence argues that Nader’s injury is \"overly speculative,” and that our granting him standing effectively \"grants standing to any political entrant to challenge any election regulation to which they might someday be subject.” Infra, at 401-02 (emphasis added). Our holding is nowhere near so broad. Nader was not merely “any political entrant” in the presidential race. At the time he brought suit, he could have plausibly hoped to qualify for an invitation to the debates. Nor did he merely worry that \"someday” corporate sponsorship of the debates would interfere with his campaign. At the time of filing, invitations to the debates were scheduled to be determined at a definite dale, soon enough in the future to affect his present campaign plans. . Similarly flawed is the FEC's argument that Nader cannot claim standing on the basis that he has been put at a competitive disadvantage in the presidential race. The FEC cites a line of Second Circuit decisions in which competitive disadvantage in a political race has been recognized as a possible basis for standing, but only where the plaintiff has shown \"that he personally competes in the same arena with the party to whom the government has bestowed the assertedly" }, { "docid": "3312517", "title": "", "text": "Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), “the irreducible constitutional minimum of standing contains three elements” — injury in fact, causation, and redressability. Resnick and Access Now — as the parties seeking to invoke federal jurisdiction — bear the burden of establishing each of these elements. Id. at 561, 112 S.Ct. 2130. Magical challenges only the injury-in-fact element in its motion (Doc. 17, at 6 n. 2). In order to satisfy this element, “the plaintiff must have suffered ... an invasion of a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural or hypothetical.” ’ ” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted). The plaintiff must himself be “ ‘among the injured.’ ” Id. at 563, 112 S.Ct. 2130 (quoting Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). The determination of whether a plaintiff has standing to bring suit is made as of the date the lawsuit is commenced. See Lujan, 504 U.S. at 569 n. 4, 112 S.Ct. 2130; Paul Revere Variable Annuity Ins. Co. v. Zang, 248 F.3d 1, 5 n. 2 (1st Cir.2001); Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n. 3 (1st Cir.2000); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000); Tucker v. Phyfer, 819 F.2d 1030 (11th Cir.1987). The ADA allows suit to be brought by “any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination.” U.S.C. § 12188(a)(1). It is undisputed that Resnick has not been on board or attempted to board either the Disney Magic or the Disney Wonder. Hence, Plaintiffs have not been subjected to discrimination. However, Plaintiffs allege in their amended complaint that they have reasonable grounds to believe that they are about to suffer discrimination based on knowledge they have acquired from Res-nick’s review of Magical’s website and its information regarding the amenities of the" }, { "docid": "2942633", "title": "", "text": "cases, the Supreme Court has stated that, as a general matter, “jurisdiction is tested by the facts as they existed when the action is brought.” Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957). Thus, “the jurisdiction of the Court depends upon the state of things at the time of the action brought, and ... after vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69, 108 S.Ct. 376, 387, 98 L.Ed.2d 306 (1987) (Sealia, J., concurring). The Fifth Circuit recently followed this language in a federal question case, holding that “with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint, and subsequent events do not deprive the court of jurisdiction.” Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir.1991); see also Senter v. General Motors Corp., 532 F.2d 511, 520 (6th Cir.) (“Standing is determined as of the date the suit is filed.”), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). More recently, however, in a case grounded in federal question jurisdiction, the Supreme Court stated that “the plaintiff must maintain a ‘personal stake’ in the outcome of the litigation throughout its course.\" Gollust v. Mendell, 501 U.S. 115, 126, 111 S.Ct. 2173, 2180, 115 L.Ed.2d 109 (1991) (emphasis added). We believe this view better represents the principles underlying standing. Accord City Communications, Inc. v. City of Detroit, 888 F.2d 1081, 1086 (6th Cir.1989) (“A plaintiff must maintain standing throughout all stages of his litigation.”). Standing is a limitation on a court’s jurisdiction. See American Postal Workers Union v. United States, 861 F.2d 211, 213 (9th Cir.1988). When a plaintiff no longer has an injury, the Article III requirements of a case or controversy are no longer met. In diversity cases, like Smith and Molían, courts look to prevent defendants from conspiring to deprive" }, { "docid": "21850207", "title": "", "text": "case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Courts must assess whether standing exists based on the facts as they existed at the time the lawsuit was filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (citation omitted). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an “injury in fact,” (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An “injury in fact” is a harm that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). The plaintiff must show that he or she “sustained or is immediately in danger of sustaining some direct injury as the result of the challenged ... conduct and [that] the injury or threat of injury [is] both real and immediate.... ” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks and citations omitted). Courts considering ADA claims have found that plaintiffs who have encountered barriers at public accommodations prior to filing their complaints have standing to bring claims for injunctive relief if they show a plausible intention or desire to return to the place but for the barriers to access. See Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir.2002); Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001); Steger, 228 F.3d 889; Disabled in Action of Metropolitan New York v. Trump International Hotel & Tower, No. 01 Civ. 5518CMBM), 2003 WL 1751785, *7, 2003 U.S. Dist. LEXIS 5145, *21-22 (S.D.N.Y. Apr. 2, 2003) (collecting cases). Intent to return to the" }, { "docid": "11660489", "title": "", "text": "I respectfully DISSENT from Section Al and Section B and CONCUR in Sections A2 and A3. STANDARD OF REVIEW Defendants successfully moved to dismiss in the district court due to a lack of subject-matter jurisdiction. We review the factual findings of the trial court for clear error and the legal conclusions de novo. MDPhysicians & Assocs. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.1992). Plaintiffs are “required to prove the existence of subject-matter jurisdiction by a preponderance of the evidence.” Middle S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.1986). DISCUSSION The facts and procedural history are unique and complex. Plaintiffs concede that they are no longer seeking damages but are instead seeking only statutory attorneys’ fees. At this point in the litigation, three things are abundantly clear. First, the named plaintiffs have received well over their claimed treble damages through the Stewart Settlement. Second, the only thing that can be gained in continuing this litigation is attorneys’ fees and costs, which plaintiffs’ attorneys admit will not go to the plaintiffs themselves. And third, any trial to award attorneys’ fees and costs would only exponentially increase the attorneys’ fees in question— with no more awarded to the plaintiffs. Standing is a constitutional requirement under Article III. See Fla. Contractors v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). “Mootness is the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). In other words, a party must have standing at all points in the litigation to continue to litigate the case, or else it becomes moot. To have Article III standing a plaintiff must show an “injury in fact” and “must have a personal stake in the outcome.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). To avoid mootness, the plaintiffs’ personal stake" }, { "docid": "9184737", "title": "", "text": "528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (\"The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).\" (internal citation and quotation marks omitted)). Standing and mootness may not be coextensive in all cases. See Friends of the Earth , 528 U.S. at 189-90, 120 S.Ct. 693. However, when the potential for injury has been mooted by events, the federal courts are deprived of jurisdiction. See California v. San Pablo & Tulare R. Co. , 149 U.S. 308, 313-14, 13 S.Ct. 876, 37 L.Ed. 747 (1893). If a case does not \"present a 'case or controversy' due to developments during litigation, those claims become moot.\" Canadian Lumber Trade Alliance v. United States , 517 F.3d 1319, 1338 (Fed. Cir. 2008). Precedent illustrates exceptions to mootness, for example when the issue has avoided review and is likely to be repeated, or when the defendant voluntarily ceased the challenged activity and the plaintiff seeks to preserve its win. See, e.g. , Milwaukee Police Ass'n v. Bd. of Fire & Police Comm'rs of the City of Milwaukee , 708 F.3d 921, 929-30 (7th Cir. 2013). In essence, \"mootness is the doctrine of standing set in a time frame; that is, the requisite personal interest that must exist at the time of commencement of the litigation (standing) must continue throughout its existence (mootness).\" Id. at 929 (quotations and alteration omitted). Here the cessation of potential infringement means that Momenta no longer has the potential for injury, thereby mooting the inquiry. \"The rules of standing, whether as aspects of the Art. III case-or-controversy requirement or as reflections of prudential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention.\" Warth , 422 U.S. at 517-18, 95 S.Ct. 2197. It is apparent that Momenta does not have standing to maintain this appeal in the federal courts. CONCLUSION Momenta does not have standing to invoke federal appellant jurisdiction, and the appeal is mooted by Momenta's discontinuance of any potentially infringing activity. APPEAL DISMISSED Momenta Pharm., Inc." }, { "docid": "13293565", "title": "", "text": "facts existing when the complaint is filed.” Klamath Siskiyou Wildlands Ctr. v. Babbitt, No. CV-99-1044-ST, 2000 WL 236366, at *3, 2000 U.S. Dist. LEXIS 2269, at *9 (D.Or. Feb. 15, 2000) (quoting Lujan, 504 U.S. at 571, n. 4, 112 S.Ct. 2130). The problem with the approach taken in Powder River is that it conflates questions of standing with questions of mootness; while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (\"[Standing is based on the facts as they existed at the time the lawsuit was filed.”); White v. Lee, 227 F.3d 1214, 1236 (9th Cir.2000) (same); Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C.Cir.2000) (same); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (Scalia, L, concurring) (\"Subject matter jurisdiction depends on the state of things at the time of the action brought; if it existed when the suit was brought, subsequent events cannot oust the court of jurisdiction.”) (internal quotation marks and citations omitted). \"The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as 'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 708-09, 145 L.Ed.2d 610 (2000) (citations omitted). But questions of standing and questions of mootness are distinct, and it is important to treat them separately. See id. at 709-10. We address whether Nader's claim is moot below. . The concurrence argues that Nader’s injury is \"overly speculative,” and that our granting him standing effectively \"grants standing to any political entrant to challenge any election regulation" }, { "docid": "17050027", "title": "", "text": "we should vacate the district court decision, as the case had become moot prior to the issuance of that decision. DISCUSSION I. Standing and Mootness We first address the PUC’s argument that Yellow Cab lacks standing and the case has become moot. “Article III mootness is ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997) (quoting Arizonans For Official English v. Arizona, — U.S. -, -, 117 S.Ct. 1055, 1069, 137 L.Ed.2d 170 (1997)). Both standing and mootness are threshold jurisdictional issues. Keyes v. School Dist. No. 1, 119 F.3d 1437, 1445 (10th Cir.1997); McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir.1996). To have standing, a plaintiff must have suffered an actual injury — “‘an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’ ” Keyes, 119 F.3d at 1445 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Moreover, to have standing a plaintiff must show that “ ‘it is likely that the injury will be redressed by a favorable decision.’ ” Boe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir.1997) (quoting United States v. Colorado Supreme Ct., 87 F.3d 1161, 1164 (10th Cir.1996)). Finally, standing must be demonstrated throughout an appeal: “a plaintiff must maintain standing at all times throughout the litigation for a court to retain jurisdiction.” Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1485 (10th Cir.1995). Similarly, “‘a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)); see also City of Albuquerque v. Browner, 97" }, { "docid": "9594631", "title": "", "text": "To pursue a case in this Court, Plaintiff must satisfy the twin requirements of standing and mootness. Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir.2007). Without a live, concrete controversy, his claims are moot, and he lacks standing. I therefore lack jurisdiction to consider his claims no matter how meritorious. Id. To establish standing, Plaintiff has the burden of showing he has suffered an injury in fact, traceable to State Farm, that can be redressed by a favorable decision of this Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is first determined by inquiring to the time the action was brought. Mink, supra, 482 F.3d at 1253. If Plaintiff lacked standing at that time, his case must be dismissed. Id. Further, Plaintiff “must maintain standing at all times throughout the litigation” for this Court to retain jurisdiction. Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir.2006). When claims become mooted by subsequent events, a plaintiff no longer has an injury that can be redressed by this Court. Friends of the Earth, Inc. v. Laidlaw Envtl. Sens. (TOC), Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (holding federal courts lack constitutional jurisdiction over eases in which one or both of the parties plainly lack a continuing interest, as when the parties have settled). After accepting payment in full for the judgment entered in his favor, Plaintiff no longer has a personal stake in the outcome of this litigation. In re Special Grand Jury 89-2, 450 F.3d 1159, 1171 (10th Cir.2006). I therefore no longer have jurisdiction to hear his case. Lippoldt, supra, 468 F.3d at 1216-17. Plaintiffs claims for equitable relief are also moot. The longstanding principle of mootness prevents the continuation of a suit seeking solely equitable relief when there is no reasonable expectation that the wrong will be repeated. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). State Farm changed its policy regarding extended PIP benefits for pedestrians in 1999. There" }, { "docid": "10265278", "title": "", "text": "any of the exceptions set forth in § 727(a).’ ” Finally, Plaintiff argues that “[i]f this Court dismisses this action for lack of subject matter jurisdiction, it will have created an irreconcilable conflict with Fed.R.Bank.P. 7041 and L.B.R. 7041-1.” None of these arguments have merit. Even if Plaintiff was authorized generally to file the adversary proceeding under § 727(c)(1) due to his status as a creditor, he must be viewed as lacking standing to-prosecute the adversary proceeding as soon as the Court determines that he is owed only a nondischargeable debt. (And this Court has now made this determination as to Plaintiff). Although a case or controversy may exist at the time the litigation is commenced, it must continue at every stage of a proceeding: That restriction requires that the party invoking federal jurisdiction have standing — the “personal interest that must exist at the commencement of the litigation.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 698, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted). But it is not enough that the requisite interest exist at the outset. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, [117 S.Ct. 1055, 137 L.Ed.2d 170] (1997). Davis v. Federal Election Commission, 554 U.S. at 732-33, 128 S.Ct. 2759; see, e.g., Chamber of Commerce of U.S. v. E.P.A., 642 F.3d 192, 199 (D.C.Cir.2011). The doctrine of mootness “has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), which quoted Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). “In" }, { "docid": "21850206", "title": "", "text": "a plaintiff in ADA litigation. The organization’s members have “a wide variety of disabilities affecting mobility.” Id. at ¶ 3. On the basis of its organizational purpose and membership, DIA claims that it enjoys “organizational” or “independent” standing to bring this action in its own right, as well as “associational standing” to bring this action on behalf of its disabled members. As noted, plaintiffs claim that eleven of GNC’s approximately 55 New York City stores have architectural barriers to entry, i.e., steps, that prevent wheelchair users from entering. Plaintiffs also claim that the “vast majority” of these 55 stores use moveable product bins or displays that also constitute access barriers to wheelchair users. Plaintiffs bring this suit both on their own behalf and as a class action on behalf of all similarly situated wheelchair users in New York City. DISCUSSION I. Standing Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. As a result, the plaintiffs’ standing to sue “is the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Courts must assess whether standing exists based on the facts as they existed at the time the lawsuit was filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (citation omitted). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an “injury in fact,” (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An “injury in fact” is a harm that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted)." }, { "docid": "23341180", "title": "", "text": "112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And finally, “it must be ‘likely,’ as opposed to merely ‘speculative’ that the injury will be ‘redressed by a favorable [judicial] decision.’ ” Id. at 561, 112 S.Ct. 2130. A district court’s determination that a plaintiff lacks standing is a question of law that is reviewed de novo on appeal. Benjamin, 57 F.3d at 104. In dismissing Marika’s ADA claim for want of standing, the district court in its September 10, 2002 memorandum of decision found that the record is devoid of any evidence suggesting that Marika plans to return to the Girl Scouts. She thus faces no threat of future harm or discrimination from the defendants and therefore lacks standing to obtain injunctive relief. Standing in the jurisdictional sense is based on the facts as they existed at the time the complaint was filed. Mangual v. Rotger-Sabat, 317 F.3d 45, 58 (1st Cir.2003). But a plaintiffs stake in a case is not frozen at the moment the lawsuit is filed. She must maintain a personal interest in the outcome throughout the litigation or the controversy becomes moot and unjusticiable despite the court’s retention of subject matter jurisdiction. See Matos v. Clinton School District, 367 F.3d 68, 71 (1st Cir.2004) (a cognizable case or controversy must exist not only at the outset of the lawsuit, but at all stages of the litigation, including appeal). The distinction between standing and mootness is not always easily grasped. “The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Becker v. Federal Election Commission, 230 F.3d 381, 387 n. 3 (1st Cir.2000) (citation omitted). It will be recalled that in responding to the invitation to attend the inaugural meeting of the 1999-2000 scouting year, Mari-ka’s mother wrote that Marika would not be rejoining the Girl Scouts. By the time the amended complaint was filed in the district court" }, { "docid": "7540925", "title": "", "text": "to fashion a remedy in a taxpayer suit for an alleged Establishment Clause violation is like trying to pound the proverbial square peg into a round hole. Restitution is a private law equitable doctrine that orders liability and remedies between private individuals based on unjust enrichment; it has no application in a suit by taxpayers raising an Establishment Clause challenge to a congressional appropriation. It certainly cannot operate as the sole basis for standing in an otherwise moot taxpayer suit. The Supreme Court has characterized the doctrine of mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotations and citations omitted). The Court has also made it clear that “a plaintiff must demonstrate standing separately for each form of relief sought.\" Id. at 185, 120 S.Ct. 693. Although the plaintiff taxpayers did not seek or argue for restitution, the majority holds that Notre Dame can be ordered to return the grant money to the Treasury, and the availability of this restitutionary remedy forestalls mootness. Implicit in this holding is a subsidiary one: that taxpayers have standing to sue a private federal grant recipient for restitution where the government is alleged to have committed an Establishment Clause violation in making or monitoring the grant. Taxpayer standing under Flast has never been understood to encompass such a claim. Constitutional standing requires, “at an irreducible minimum,” that the party invoking the court’s authority “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752 (internal quotations and citations omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)." }, { "docid": "2942632", "title": "", "text": "was ripe when filed. C. Although we have determined that plaintiffs suit against the state was ripe when filed and was not barred by the Eleventh Amendment, we must now address whether plaintiff lost standing because of the Wyoming Supreme Court’s decision in 1994. See Powder River Basin, 869 P.2d at 435. Although the parties did not raise this issue in district court, “[standing may be raised at any time in the judicial process.” Board of County Comm’rs v. W.H.I., Inc., 992 F.2d 1061, 1063 (10th Cir.1993). We first examine whether a party can lose standing in the middle of a lawsuit. Defendants do not dispute that plaintiff had standing when it filed suit. Thus, although “[sjtanding represents a jurisdictional requirement which remains open to review at all stages of the litigation,” National Org. for Women, Inc. v. Scheidler, — U.S. —, —, 114 S.Ct. 798, 802, 127 L.Ed.2d 99 (1994), we must still answer the question of whether standing is measured only when a suit is filed or throughout the litigation. In diversity jurisdiction cases, the Supreme Court has stated that, as a general matter, “jurisdiction is tested by the facts as they existed when the action is brought.” Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957). Thus, “the jurisdiction of the Court depends upon the state of things at the time of the action brought, and ... after vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69, 108 S.Ct. 376, 387, 98 L.Ed.2d 306 (1987) (Sealia, J., concurring). The Fifth Circuit recently followed this language in a federal question case, holding that “with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint, and subsequent events do not deprive the court of jurisdiction.” Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir.1991); see also Senter v." }, { "docid": "2571031", "title": "", "text": "mootness); Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1309 (Fed.Cir.2003); Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n. 3 (1st Cir.2000) (collecting cases and holding that “while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter”). But see Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995) (considering post-complaint events in examining a plaintiffs standing). At the time Rothe filed suit, the price-evaluation adjustment was in full force. The mere passage of the. mechanism by which the suspension could be implemented does not demonstrate that Rothe’s claimed injury was so “conjectural or hypothetical” that it lacked standing. Accordingly, we reject the government’s standing argument. 3 The last jurisdictional argument raised by the government against Rothe’s facial unconstitutionality claim is based on ripeness grounds. “A court should dismiss a case for lack of ripeness when the case is abstract or hypothetical.... A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Monk v. Huston, 340 F.3d 279, 282 (5th Cir.2003) (internal quotations omitted); Maritrans, Inc. v. United States, 342 F.3d 1344, 1359 (Fed.Cir.2003) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Once again, the government bases its ripeness contention on the same evidence it offers for mootness and standing — “The PEA program is suspended, has been for many years, shows no sign of reactivation, and Section 1207 is slated to terminate in 2006.” The government’s argument is misplaced because the issue whether section 1207, as reauthorized in 2002, is facially unconstitutional is a purely legal issue that is neither abstract nor hypothetical. Indeed, as we held in Rothe’s prior appeal, the analysis of the facial constitutionality of an act is limited to evidence' before Congress prior to the date of reauthorization. Rothe III, 262 F.3d at" }, { "docid": "2571030", "title": "", "text": "the injury will be redressed by a favorable decision.” Friends of the Earth, 528 U.S. at 180-81, 120 S.Ct. 693 (internal quotation omitted). The government contends that Rothe lacks standing because the potential for recurrence of the claimed offending conduct is “conjectural or hypothetical,” as compared to “actual or imminent.” For its standing argument, the government relies on the same evidence that it presented for mootness, claiming that (1) Congress had passed the suspension provision before Rothe filed its original complaint, (2) the price-evaluation adjustment was in fact suspended by the Department of Defense before Rothe filed its first amended complaint, and (3) the suspension has remained in place to this point. Because “standing is to be determined as of the commencement of suit,” only the first of the three pieces of evidence cited by the government is relevant in determining whether Rothe had standing to bring this suit. Lujan, 504 U.S. at 570 n. 5, 112 S.Ct. 2130; Friends of the Earth, 528 U.S. at 189-93, 120 S.Ct. 693 (discussing differences between standing and mootness); Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1309 (Fed.Cir.2003); Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n. 3 (1st Cir.2000) (collecting cases and holding that “while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter”). But see Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995) (considering post-complaint events in examining a plaintiffs standing). At the time Rothe filed suit, the price-evaluation adjustment was in full force. The mere passage of the. mechanism by which the suspension could be implemented does not demonstrate that Rothe’s claimed injury was so “conjectural or hypothetical” that it lacked standing. Accordingly, we reject the government’s standing argument. 3 The last jurisdictional argument raised by the government against Rothe’s facial unconstitutionality claim is based on ripeness grounds. “A court should dismiss a case for lack of ripeness" } ]

[ { "docid": "22712100", "title": "", "text": "Foote, A Comment on PreTrial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960). See Thomas v. Cunningham, 313 F. 2d 934, 938 (CA4 1963). For our purposes, it suffices to note that the prohibition is fundamental to an adversary system of justice. See generally Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 455, 457-459 (1967). Accordingly, as to federal cases, we have approved a test of incompetence which seeks to ascertain whether a criminal defendant “ Tas sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.' ” Dusky v. United States, 362 U. S., at 402. In Pate v. Robinson, 383 U. S. 375 (1966), we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois “jealously guard [ed] this right,” id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill. Rev. Stat., c. 38, § 104-2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. See, e. g., United States v. Knohl, 379 F. 2d 427, 434-435 (CA2), cert. denied, 389 U. S. 973 (1967); United States ex rel. Evans v. LaVallee, 446 F. 2d 782, 785-786 (CA2 1971), cert. denied, 404 U. S. 1020 (1972). Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted that under the Illinois statute a hearing was required where the evidence raised a “ ‘bona fide" } ]

[ { "docid": "2499866", "title": "", "text": "e.g., Ronald Roesch, Stephen D. Hart, and Patricia A. Zapf, Conceptualizing and Assessing Competency to Stand Trial: Implications and Applications of the MacArthúr Treatment Competence Model, 2 Psychol. Pub. Pol’y & L. 96, 97-98 (1996)(out-lining standards for competence to stand trial); cf. Godinez v. Moran, 509 U.S. 389, 403, 113 S.Ct. 2680, 2689, 125 L.Ed.2d 321 (1993)(Kennedy, J., concurring)(“what is at issue here is whether the defendant has sufficient competence to take part in a criminal proceeding and to make the decisions throughout its course. This is not to imply that mental competence is the only aspect of a defendant’s state of mind that is relevant during criminal proceedings.”). Defendants who are incapable of contributing to their defense or of understanding the criminal proceedings against them are incompetent to stand trial. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); United States v. Espinal, 769 F.Supp. 116, 118 (S.D.N.Y.1991). While they remain incompetent they can not be tried. Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975); see also, Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 454 (1967)(“[t]he question of competency to stand trial relates ... to the appropriateness of conducting the criminal proceeding in light of the defendant’s present inability to participate effectively”). The Due Process Clause requires this result. See, e.g., Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996). “[P]rohibition against trying the incompetent defendant was well-established by the time Hale and Blackstone wrote their famous commentaries.” Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996); see Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Ronald Roesch, Stephen D. Hart, and Patricia A. Zapf, Conceptualizing and Assessing Competency to Stand Trial: Implications and Applications of the MacArthur Treatment Competence Model, 2 Psychol. Pub. Pol’y" }, { "docid": "22362917", "title": "", "text": "to those of a criminal defendant whose competency must be monitored by the court throughout the proceedings to protect his due process right not to stand trial if incompetent. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Competency in criminal cases is subject to reevaluation because it is essential to a defendant’s ability to exercise the fundamental procedural rights guaranteed by the Fifth and Sixth Amendments. See Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring) (“Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.”). Those rights, and the due process protections recognized to safeguard them, exist because of the liberty interest implicated by a criminal prosecution. Nothing in § 1915(e)(1) itself suggests an obligation to revisit an earlier denial of pro bono counsel. Accordingly, there is neither a statutory nor a constitutional duty to monitor whether an indigent litigant is competently litigating his civil claims after a § 1915(e)(1) request has been denied. The district court is required to exercise its discretion appropriately when presented with a motion seeking recruitment of pro bono counsel, but that is where its obligations end. The court certainly retains the discretion to adjourn a trial and recruit pro bono counsel if it appears as though an earlier denial of a request for counsel may have been ill-advised; doing so here might well have been prudent given Pruitt’s obvious inadequacies. But the court has no general duty to do so, even where an indigent plaintiff ultimately proves incompetent to litigate his own claims. B. Appellate Review We review the denial of a § 1915(e)(1) motion for abuse of discretion. Greeno v. Daley, 414 F.3d 645, 658" }, { "docid": "22322598", "title": "", "text": "onerous burden on him as to violate his right to due process of law. The appellate court rejected this argument.' After noting that it can be difficult to determine whether a defendant is malingering, given “the inexactness and uncertainty attached to [competency] proceedings,” the court held that the standard was justified because the “State has great interest in assuring its citizens a thorough and speedy judicial process,” and because a “truly incompetent criminal defendant, through his attorneys and experts, can prove incompetency with relative ease.” 889 P. 2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals’ conclusion that appli cation of the clear and convincing evidence standard does not violate due process. 516 U. S. 910 (1995). II No one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consistently recognized that “the criminal trial of an incompetent defendant violates due process.” Medina v. California, 505 U. S. 437, 453 (1992); Drope v. Missouri, 420 U. S. 162, 171-172 (1975); Pate v. Robinson, 383 U. S. 375, 378 (1966). Nor is the significance of this right open to dispute. As Justice Kennedy recently emphasized: “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171-172 (1975).” Riggins v. Nevada, 504 U. S. 127, 139-140 (1992) (opinion concurring in judgment). The test for incompetence is also well settled. A defendant may not be put to trial unless he “‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam). Our recent decision in Medina v. California, 505 U. S. 437 (1992), establishes that a" }, { "docid": "1063160", "title": "", "text": "if the state court decision can be said to be one of several e.qually plausible outcomes.”). In the habeas context, an “unreasonable” application is more than simply an “incorrect” application, so “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411, 120 S.Ct. 1495. Rather, in order to trigger grant of the writ, the state-court decision must be both incorrect and unreasonable. See Moore v. Casperson, 345 F.3d 474, 490 (7th Cir.2003) (citations omitted). In addition, a state court’s factual determinations are presumed to be correct, and a petitioner bears the burden of rebutting this presumption by clear and convincing evidence. See Conner v. McBride, 375 F.3d 643, 649 (7th Cir.2004). In reviewing the district court’s denial of the petition, we review the court’s findings of fact for clear error and the court’s legal conclusions de novo. See Richardson v. Briley, 401 F.3d 794, 799 (7th Cir.2005) (citations omitted). A. Competency First, Woods’s competency claim. Whether a defendant is competent depends on whether he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). It is well established that the due process clause of the Fourteenth Amendment prohibits the states from trying and convicting mentally incompetent defendants. See Pate v. Robinson, 383 U.S. 375, 384-85, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); see also Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (noting that the Supreme Court has “repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process’ ” (quoting Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992))); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir.1996) (“The Constitution forbids trial of one who, for whatever reason, is unfit" }, { "docid": "22321854", "title": "", "text": "1150. “There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed .... ” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A district court must consider many factors when determining whether it has “reasonable cause” to order a competency hearing. Id. The district court’s own observations of the defendant’s demeanor during the proceeding are relevant to the court’s determination, but the court’s observations alone “cannot be relied upon to dispense with a hearing on that very issue” if there is substantial other evidence that the defendant is incompetent. Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); see also Vamos, 797 F.2d at 1150 (“[D]eference is owed to the district court’s determinations based on observation of the defendant during the proceedings.”). And while a defendant may be found incompetent even when his attorney asserts that he is competent, United States v. Hemsi, 901 F.2d 293, 294-96 (2d Cir.1990), “[a] failure by trial counsel to indicate that the defendant had any difficulty assisting in preparation or in comprehending the nature of the proceedings ‘provides substantial evidence of the defendant’s competence.’ ” United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.) (quoting Vamos, 797 F.2d at 1150), cert. denied, 516 U.S. 927, 116 S.Ct. 330, 133 L.Ed.2d 230 (1995); see also Drope, 420 U.S. at 177 n, 13, 95 S.Ct. 896 (recognizing the importance of considering counsel’s judgment about the defendant’s state of mind). A- district court also often orders and reviews psychiatric records when determining whether to hold a hearing. See, e.g., Vamos, 797 F.2d at 1150-51. B. Analysis Donato, through counsel, contends that the district court should have held a hearing to determine his competence after he complained that he felt dizzy because prison officials administered the wrong psychiatric medication. Certainly, the improper administration of psychiatric medicine can render an individual temporarily incompetent. Riggins v. Nevada, 504 U.S. 127, 137, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992); id. at 143-44, 112 S.Ct. 1810 (Kennedy, J., concurring)" }, { "docid": "23600013", "title": "", "text": "not to testify when his concern about his exposure to potential criminal liability motivated the decision, not any threats by government officials); Hooks, 848 F.2d at 799-802 (noting that “[i]t is not improper per se for a ... prosecuting attorney to advise prospective witnesses of the penalties for testifying falsely,” and finding no prosecutorial misconduct when the prosecutor simply informed the court arid counsel for the defense witnesses that the witnesses could be prosecuted if they testified falsely, and there was no evidence of threats and intimidation). Williams fails to show that the prosecution denied his witnesses use immunity with the deliberate intention of distorting the fact-finding process. Because Williams does not establish that the second state evidentiary hearing on his Sixth Amendment claim was not full and fair, the district court properly deferred under pre-AEDPA § 2254(d) to the California Supreme Court’s factual determinations with respect to this claim. Accordingly, we decline Williams’s request for remand for an evidentiary hearing. E. Incompetence To Stand Trial. (Claim A) Williams claims violations to his due process rights because the trial judge failed sua sponte to conduct a competency hearing, and because he was tried while incompetent. We consider each claim in turn. 1. Proceduralr-Due-Process Claim. Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial, and the state must provide procedures for determining the defendant’s' competence. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). A state trial judge must conduct a competency hearing, regardless of whether defense counsel requests one, whenever the evidence before the judge raises a bona fide doubt about the defendant’s competence to stand trial. Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (citing de Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976) (en banc)); see also Pate, 383 U.S. at 385, 86 S.Ct. 836 (finding the statutory procedure using the “bona fide doubt”" }, { "docid": "7858727", "title": "", "text": "opportunity to consider the claim. However, the presence of one of these factors, particularly factors (1) or (2), does not automatically avoid a waiver; the court must consider the specific facts of each case. Verdin v. O’Leary, 972 F.2d 1467, 1473-74 (7th Cir.1992). Petitioner, here represented by able and experienced death penalty counsel, has the burden to establish a basis for federal collateral relief. III. Competency Claims Petitioner’s first three claims all center around his contention that he was incompetent to stand trial. The first claim is that his incompetency at trial violated his due process rights. The second asserts that the trial judge should have sua sponte held a competency hearing, and his failure to do so abridged Matheney’s due process. Finally, Matheney asserts that his counsel ineffectively assisted him because they failed to question his competency to stand trial. As an initial matter, the state asserts that Matheney has procedurally defaulted the first two claims because he failed to raise them during his post-conviction relief proceedings. On page 81 of his appeals brief to the Indiana Supreme Court, the following heading appears: Matheney’s Convictions and Sentence Violate Due Process Because He Was Not Competent To Stand Trial. Trial Counsel Ineffectively Represented Matheney By Failing to Alert The Court That Matheney Was Unable to Rationally Understand The Proceedings and Unable to Assist in His Defense, and the Trial Court Neglected Its Affirmative Obligation to Inquire. In one paragraph of the six pages that follow that heading, Matheney asserts that the trial of an incompetent person can never satisfy the demands of the due process clause of the United States Constitution. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The prohibition on trying an incompetent person is “fundamental to an adversary system of justice.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The right to be competent to stand trial cannot be waived. Pate v. Robinson, 383 U.S. at 384, 86 S.Ct. 836. Petitioner’s Brief to Indiana Supreme Court on PCR, p. 83 (parallel citations omitted.) The following paragraph" }, { "docid": "23600014", "title": "", "text": "rights because the trial judge failed sua sponte to conduct a competency hearing, and because he was tried while incompetent. We consider each claim in turn. 1. Proceduralr-Due-Process Claim. Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial, and the state must provide procedures for determining the defendant’s' competence. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). A state trial judge must conduct a competency hearing, regardless of whether defense counsel requests one, whenever the evidence before the judge raises a bona fide doubt about the defendant’s competence to stand trial. Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (citing de Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976) (en banc)); see also Pate, 383 U.S. at 385, 86 S.Ct. 836 (finding the statutory procedure using the “bona fide doubt” standard to be constitutionally adequate). A- bona fide doubt exists if there is “ ‘substantial evidence of incompetence,’ ” Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997) (quoting United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993)), or substantial evidence that the defendant lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); see also Torres v. Prunty, 223 F.3d 1103, 1106 (9th Cir.2000). In reviewing whether a state trial judge should have sua sponte conducted a competency hearing, a federal court may consider only the evidence that was before the trial judge. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993). Although no particular facts signal a defendant’s incompetence, suggestive evidence includes the defendant’s demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant’s competence to stand trial." }, { "docid": "22183547", "title": "", "text": "judge failed sug sponte to conduct a competency hearing, and because he was tried while incompetent. We consider each claim in turn. 1. Procedural-Due-Process Claim. Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial, and the state must provide procedures for determining the defendant’s competence. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). A state trial judge must conduct a competency hearing, regardless of whether defense counsel requests one, whenever the evidence before the judge'raises a bona fide doubt about the defendant’s competence to stand trial. Odie v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (citing de Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976) (en banc)); see also Pate, 383 U.S. at 385, 86 S.Ct. 836 (finding the statutory procedure using the “bona fide doubt” standard to be constitutionally adequate). A bona fide doubt exists if there is “ ‘substantial evidence of incompetence,’ ” Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997) (quoting United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993)), or substantial evidence that the defendant lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); see also Torres v. Prunty, 223 F.3d 1103, 1106 (9th Cir.2000). In reviewing whether a state trial judge should have sua sponte conducted a competency hearing, a federal court may consider only the evidence that was before the trial judge. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993). Although no particular facts signal a defendant’s incompetence, suggestive evidence includes the defendant’s demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant’s competence to stand trial. Drope, 420 U.S. at 180," }, { "docid": "22362916", "title": "", "text": "v. McBride, 74 F.3d 144 (7th Cir.1996). The Supreme Court has also made it clear that a prisoner’s right of access to the courts does not guarantee the effective presentation of his civil claims. The right of access to the courts protects prisoners from “being shut out of court,” see Christopher v. Harbury, 536 U.S. 403, 413, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); it does not exist to “enable the prisoner ... to litigate effectively once in court.” Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (to expand the “right of access” to guarantee prisoners a right to “litigate effectively” would essentially “demand permanent provision of counsel, which we do not believe the Constitution requires”); see also Bounds v. Smith, 430 U.S. 817, 827, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (“right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers” (emphasis added)). Moreover, the interests of an indigent civil litigant in this context are not analogous to those of a criminal defendant whose competency must be monitored by the court throughout the proceedings to protect his due process right not to stand trial if incompetent. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Competency in criminal cases is subject to reevaluation because it is essential to a defendant’s ability to exercise the fundamental procedural rights guaranteed by the Fifth and Sixth Amendments. See Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring) (“Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.”). Those rights, and the due process protections recognized to safeguard them, exist" }, { "docid": "13998597", "title": "", "text": "ruling that the petitioner was competent at the time he entered his no contest plea was contrary to, or an unreasonable application of, United States Supreme Court law. Although the state procedures were not perfect, the errors initially committed were addressed in post-conviction proceedings so that the petitioner had a full and meaningful review of the competency issues presented by the record. “[T]hat the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial” is not debatable. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). As the Supreme Court has explained, competency to stand trial involves “the capacity [of a defendant] to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Drope, 420 U.S. at 171, 95 S.Ct. 896. A defendant is competent to stand trial if “he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and [if] he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The concept of competency to stand trial is fundamental to our system, “for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quoting Drope, 420 U.S. at 171-72, 95 S.Ct. 896). “[A]n erroneous determination of competence threatens a ‘fundamental component of our criminal justice system’ — the basic fairness of the trial itself.” Id. at 364, 116 S.Ct. 1373 (quoting United" }, { "docid": "2499867", "title": "", "text": "L.Ed.2d 498 (1996); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975); see also, Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 454 (1967)(“[t]he question of competency to stand trial relates ... to the appropriateness of conducting the criminal proceeding in light of the defendant’s present inability to participate effectively”). The Due Process Clause requires this result. See, e.g., Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996). “[P]rohibition against trying the incompetent defendant was well-established by the time Hale and Blackstone wrote their famous commentaries.” Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996); see Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Ronald Roesch, Stephen D. Hart, and Patricia A. Zapf, Conceptualizing and Assessing Competency to Stand Trial: Implications and Applications of the MacArthur Treatment Competence Model, 2 Psychol. Pub. Pol’y & L. 96, 97-98 (1996)(competency law in both Canada and the United States finds its roots in English common law); Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 454 (1967)(“[t]he common law provided, as a matter of fairness and humanity, that a person could not be criminally tried” if incompetent). Blackstone explained, [i]f a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? 4 William Blackstone, Commentaries *24. Because it was also recognized early on that defendants, knowing they could avoid trial by claiming mental defect might falsely do so, hearings on the issue of incompetence were strongly encouraged. 1 Hale P.C. *35 (“there may be great fraud in this matter ... the judge, before respite of trial" }, { "docid": "22183546", "title": "", "text": "his concern about his exposure to potential criminal liability motivated the decision, not any threats by government officials); Hooks, 848 F.2d at 799-802 (noting that “[i]t is not improper per se for a ... prosecuting attorney to advise prospective witnesses of the penalties for testifying falsely,” and finding no prosecutorial misconduct when the prosecutor simply informed the court and counsel for the defense witnesses that the witnesses could be prosecuted if they testified falsely, and there was no evidence of threats and intimidation). Williams fails to show that the prosecution denied his witnesses use immunity with the deliberate intention of distorting the fact-finding process. Because Williams does not establish that the second state evidentiary hearing on his Sixth Amendment claim was not full and fair-, the district court properly deferred under pre-AEDPA § 2254(d) to the California Supreme Court’s factual determinations with respect to this claim. Accordingly, we decline Williams’s request for remand for an evidentiary hearing. E. Incompetence To Stand Trial. (Claim A) Williams claims violations to his due process rights because the trial judge failed sug sponte to conduct a competency hearing, and because he was tried while incompetent. We consider each claim in turn. 1. Procedural-Due-Process Claim. Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial, and the state must provide procedures for determining the defendant’s competence. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). A state trial judge must conduct a competency hearing, regardless of whether defense counsel requests one, whenever the evidence before the judge'raises a bona fide doubt about the defendant’s competence to stand trial. Odie v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (citing de Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976) (en banc)); see also Pate, 383 U.S. at 385, 86 S.Ct. 836 (finding the statutory procedure using the “bona fide doubt” standard to be constitutionally adequate)." }, { "docid": "12193511", "title": "", "text": "“[c]ompetence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so,” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quoting Riggins v. Nevada, 504 U.S. 127, 139-140, 112 S.Ct. 1810, 118 L.Ed.2d 479 (Kennedy, J„ concurring in judgment)). The test for incompetence is also well-settled: “A defendant may not be put to trial unless he ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.” Cooper, 517 U.S. at 354, 116 S.Ct. 1373 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)) (omissions and alterations in original): The Supreme Court has held that the centrality of the right to be competent requires that, as a matter of procedural due process, “state procedures must be adequate to protect this right.” Pate, 383 U.S. at 378, 86 S.Ct. 836; see also Hull v. Kyler, 190 F.3d 88, 110 (3d Cir.1999) (“Pate ... required states to provide adequate procedures to ensure that only competent defendants were tried (and convicted).”). Thus, in Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Court held that due process had been violated because the state court had failed to follow a state statute requiring that a jury be impaneled where there was a bona fide doubt of defendant’s competence. The Court found that the significant evidence of the defendant’s “pronounced irrational behavior” that was presented at trial required, a stand-alone competency hearing in spite of the trial court’s assessment of its colloquies with defendant and the stipulation that a psychiatrist would testify that defendant “knew the nature of the charges against him and was able to cooperate with counsel when he" }, { "docid": "23440950", "title": "", "text": "appeal but [was] not.” Castro v. State, 880 P.2d 387, 388 (Okla.Crim. App.1994). The district court determined that it had to address the merits of this claim, despite the Oklahoma court’s finding of procedural bar, because ineffective assistance of counsel can constitute \"cause” excusing a procedural default, and Mr. Castro argues that the ineffectiveness of his appellate counsel caused the default of this issue. Thus, to analyze whether his appellate counsel was ineffective, the court felt compelled to address the merits. Additionally, Mr. Castro argues that competency to stand trial cannot be waived. The Supreme Court has described the importance of the right to not. be tried while incompetent: \" ‘Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.’ ” Cooper v. Oklahoma, 517 U.S. 348, 352-54, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996) (quoting Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S.Ct. 1810, 1817-18, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring in the judgment)). The Court has further said \"the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination.” Id. at 354 n. 4, 116 S.Ct. at 1377 n. 4. We have also stated that the right cannot be waived. Nguyen, 131 F.3d at 1346 (noting that the \"general rule [of procedural bar] does not apply to substantive mental competency claims”); United States v. Williams, 113 F.3d 1155, 1160 (10th Cir.1997). . It appears the district court mistakenly thought the record showed that \"Castro was evaluated by two (2) mental health professionals other than Dr. Garcia prior to the proceedings in Noble County.\" Memorandum Op. and Order at 26 n. 53, R. Vol. I at Tab 24. In fact, the transcript of the pre-trial proceedings to which the district" }, { "docid": "12193510", "title": "", "text": "of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “No principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Rodriguez v. Miller, 499 F.3d 136, 140 (2d Cir.2007). Long before the Appellate Division’s decision in this case, the general rule that “the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial” was “well-established.” Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). The Supreme Court has noted that this “prohibition is fundamental to an adversary system of justice,” Drope, 420 U.S. at 172, 95 S.Ct. 896, and emphasized that “[c]ompetence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so,” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quoting Riggins v. Nevada, 504 U.S. 127, 139-140, 112 S.Ct. 1810, 118 L.Ed.2d 479 (Kennedy, J„ concurring in judgment)). The test for incompetence is also well-settled: “A defendant may not be put to trial unless he ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.” Cooper, 517 U.S. at 354, 116 S.Ct. 1373 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)) (omissions and alterations in original): The Supreme Court has held that the centrality" }, { "docid": "1063161", "title": "", "text": "A. Competency First, Woods’s competency claim. Whether a defendant is competent depends on whether he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). It is well established that the due process clause of the Fourteenth Amendment prohibits the states from trying and convicting mentally incompetent defendants. See Pate v. Robinson, 383 U.S. 375, 384-85, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); see also Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (noting that the Supreme Court has “repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process’ ” (quoting Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992))); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir.1996) (“The Constitution forbids trial of one who, for whatever reason, is unfit to assist in his own defense because our adversarial system of justice depends on vigorous defenses.”). A defendant is entitled to a hearing on his competency if a bona fide doubt arises about his ability to consult with his attorney or his understanding of the charges brought against him. Drope v. Missouri 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate, 383 U.S. at 385, 86 S.Ct. 836. Likewise, a trial judge must inquire sua sponte into a defendant’s mental state if events in court call into question the defendant’s competency. See Timberlake v. Davis, 409 F.3d 819, 822 (7th Cir.2005). As set forth in his brief, Woods claims that “the exact question at issue[ ] is Woods[’s] ability to assist his counsel during trial, specifically during jury selection, due to his inability to remain awake caused by an antipsychotic medication which drugged him into incoherent somnolence.” (Pet. Br. at 14.) In short, Woods claims that he was unable to assist his counsel during voir dire on the second day of his" }, { "docid": "22759332", "title": "", "text": "him to death. One psychiatrist testified he was incompetent. Another psychiatrist and a psychologist testified he was not. Several other experts testified but did not express an opinion on competence. Instructed to presume that petitioner Medina was competent, the jury returned a finding of competence. For all we know, the jury was entirely undecided. I do not believe a Constitution that forbids the trial and conviction of an incompetent person tolerates the trial and conviction of a person about whom the evidence of competency is so equivocal and unclear. I dissent. I The right of a criminal defendant to be tried only if competent is “fundamental to an adversary system of justice,” Drope v. Missouri, 420 U. S. 162, 172 (1975). The Due Process Clause forbids the trial and conviction of persons incapable of defending themselves — persons lacking the capacity to understand the nature and object of the proceedings against them, to consult with counsel, and to assist in preparing their defense. Id., at 171. See also Pate v. Robinson, 383 U. S. 375, 378 (1966). The right to be tried while competent is the foundational right for the effective exercise of a defendant’s other rights in a criminal trial. “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to eross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.” Riggins v. Nevada, 504 U. S. 127, 139 (1992) (Kennedy, J., concurring in judgment). In the words of Professor Morris, one of the world’s leading criminologists, incompetent persons “are not really present at trial; they may not be able properly to play the role of an accused person, to recall relevant events, to produce evidence and witnesses, to testify effectively on their own behalf, to help confront hostile witnesses, and to project to the trier of facts a sense of their innocence.” N. Morris, Madness and the Criminal Law 37 (1982)." }, { "docid": "10833010", "title": "", "text": "this circuit with respect to evaluating the need for a competency hearing is our recent en banc decision in McGregor v. Gibson, where we noted that it is “well-settled that the ‘criminal trial of an incompetent defendant violates due process,’” 248 F.3d 946, 951 (10th Cir.2001) (en banc) (quoting Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)), and that this “prohibition is fundamental to an adversary system of justice,” id. (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). In determining whether a criminal defendant is competent to stand trial, the trial court must consider “whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). A competency claim by a criminal defendant may implicate both substantive and procedural due process. Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir.1999). “A procedural competency claim is based upon a trial court’s alleged failure to hold a competency hearing, ... while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent.” McGregor, 248 F.3d at 952. As a result, a procedural incompetency claim requires a lower burden of proof as to defendant’s competency than does a substantive competency claim. Id. In McGregor, we noted that the procedural due process right to a competency hearing is grounded on the obligation of the state to provide adequate procedures to protect accused individuals from being tried while incompetent. Id. (citing Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). In order for a habeas petitioner to prevail on a procedural competency claim, “the petitioner must establish that a reasonable judge should have had a bone fide doubt as to his competence at the time of trial. We view the evidence in the record objectively, from the" }, { "docid": "3312322", "title": "", "text": "its ruling that it was legally forbidden to hold an evidentiary hearing is reviewed de novo. See Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir.2000). Roberts first argues that his due process rights were violated by the trial court’s failure to hold a competency hearing to determine whether he was competent to stand trial and direct his trial strategy. Under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), a trial court must hold a competency hearing when there is evidence before the court that objectively creates a bona fide question as to whether the defendant is competent to stand trial. Id. at 385, 86 S.Ct. 836; Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980). The petitioner need not establish that he was incompetent to stand trial to obtain relief, rather he need only establish that the trial judge should have ordered a hearing to determine his competency. See Lokos, 625 F.2d at 1261. “The question is: Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about [the] defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.” Id.; see Medina v. California, 505 U.S. 437, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (The key is whether the defendant had “the capacity to participate in his defense and understand the proceedings against him.’’). In Pate, “[flour witnesses expressed the opinion that Robinson was insane.” Pate, 383 U.S. at 383, 86 S.Ct. 836. There was also evidence in the record establishing that Robinson had previously been hospitalized in a state mental institution where he was observed to have “symptoms of mental illness.” Id. at 379-80, 86 S.Ct. 836. Further, the core of Robinson’s defense was that he was insane. Id. at 384, 86 S.Ct. 836. In this ease, there was no evidence before the trial court suggesting that Roberts was insane or that he was unable to participate in his defense or understand the proceedings against him. Roberts argues that" } ]

[ { "docid": "22330942", "title": "", "text": "Oil Co., 884 F.2d 1510, 1513 (1st Cir.1989), scrutinizing the entire record in the light most flattering to the nonmovant and indulging all reasonable inferences in that party’s favor. See Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989); Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). Summary judgment practice has a rhythm of its own. We have described that rhythm in the following way: The movant must put the ball in play, averring “an absence of evidence to support the nonmoving party’s case.” The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both “genuine” and “material.” A “genuine” issue is one “that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Put another way, a “genuine” issue exists if there is “sufficient evidence supporting the claimed factual dispute” to require a choice between “the parties’ differing versions of the truth at trial.” A “material” issue is one that “affect[s] the outcome of the suit,” that is, an issue which, perforce, “need[s] to be resolved before the related legal issues can be decided.” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citing and quoting, inter alia, Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (other citations omitted)). On issues as to which the nonmovant bears the ultimate burden of proof, he may not defeat a properly focused motion for summary judgment by relying upon mere allegations or evidence that is less than significantly probative. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Pagano v. Frank, 983 F.2d 343, 348 (1st Cir.1993). Put another way, a party opposing summary judgment must “present definite, competent evidence to rebut the motion.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); accord" } ]

[ { "docid": "20121333", "title": "", "text": "the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines the record in the “light most favorable to the nonmovant,” and indulges all “reasonable inferences in that party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). “A factual issue is ‘genuine’ if ‘it may reasonably be resolved in favor of either party’ and, therefore, requires the finder of fact to make ‘a choice between the parties’ differing versions of the truth at trial.’ ” DePoutot v. Raffaelly, 424 F.3d 112, 116 (1st Cir.2005) (citing Garside, 895 F.2d at 48 (1st Cir.1990)); see also SEC v. Fichen, 546 F.3d 45, 51 (1st Cir.2008). In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir.2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Nor will “effusive rhetoric” and “optimistic surmise” suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). Once the party moving for summary judgment has established an absence of material facts in dispute, and that he or she is entitled to judgment as a matter of law, the “party opposing summary judgment must present definite, competent evidence to rebut the motion.” Mendez-Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir.2005) (citing Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994)). “The non-movant must ‘produce specific facts, in suitable evidentiary form’ sufficient to limn a trial-worthy issue.... Failure to do so allows the summary judgment engine to operate at full throttle.” Id., see also Kelly v. United States, 924 F.2d 355," }, { "docid": "12847178", "title": "", "text": "judgment to Ford. II. DISCUSSION A. Standard of Review This Court reviews grants of summary judgment de novo, construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party’s favor. Houlton Citizens’ Coalition, 175 F.3d at 184. This standard of review does not limit us to the district court’s rationale; we may affirm the entry of summary judgment on “any ground revealed by the record.” Id. Summary judgment may be granted only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). To be considered material, a disputed fact must have the potential to “affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505. The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden “may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s ease.” Id. at 325, 106 S.Ct. 2548. After such a showing, the “burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548). In the end, after examining the facts in the light most favorable to the" }, { "docid": "2221101", "title": "", "text": "and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.2011). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir.1994). At this stage, the court construes the record in the “light most flattering” to the nonmovant, resolving all reasonable inferences in that party’s favor. Soto-Padro v. Public Bldgs. Authority, 675 F.3d 1 (1st Cir.2012). The summary judgment inquiry is grounded in the factual evidence available, since “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has averred that there is an absence of evidence to support the nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at least one fact at issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). “A factual issue is ‘genuine’ if ‘it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make ‘a choice between the parties’ differing versions of the truth at trial.’ ” DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005) (quoting Garside, 895 F.2d at 48). A material fact, in turn, is one that may affect the outcome of the suit under the governing law. Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir.1994). At any rate, to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir.2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Nor will “effusive rhetoric” and “optimistic surmise” suffice to establish a genuine issue of material fact. Cadle" }, { "docid": "16072342", "title": "", "text": "317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the initial burden is met, the burden shifts to the non-moving party to show that genuine issues of material fact exist. See Razzabo-ni v. Schifano (In re Sehifano), 378 F.3d 60, 66 (1st Cir.2004) (citing FDIC v. Ponce, 904 F.2d 740, 742 (1st Cir.1990)). The Court of Appeals for the First Circuit has described the summary judgment practice as follows: The movant must put the ball in play, averring “an absence of evidence to support the nonmoving party’s case.” [¶]... ] The burden then shifts to the nonmov-ant to establish the existence of at least one fact issue which is both “genuine” and “material.” [...] A “genuine” issue is one “that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” [¶]... ] Put another way, a “genuine” issue exists if there is “sufficient evidence supporting the claimed factual dispute” to require a choice between “the parties” differing versions of the truth at trial. [¶]... ] A “material” issue is one that “affects the outcome of the suit,” [...] that is, an issue which, perforce, “needs to be resolved before the related legal issues can be decided.” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548; other citations omit ted). A trial court’s grant of summary judgment, as well as its determination that there are no issues of material fact in dispute, are reviewed de novo. See Canzano v. Ragosa (In re Colarusso), 382 F.3d 51, 57-58 (1st Cir.2004); McCrory v. Spigel (In re Spigel), 260 F.3d 27, 31 (1st Cir.2001); Beatrice v. Braunstein (In re Beatrice), 296 B.R. 576, 577 (1st Cir. BAP 2003). The specific standards of review applicable to each of the court’s specific determinations will be discussed below. ISSUES ON APPEAL 1. Whether the district court erred by not dismissing the case due to lack of non-diverse indispensable parties. 2. Whether DCC lacked contractual standing to enforce the terms of the Subordination Agreement. 3." }, { "docid": "19329606", "title": "", "text": "a matter of law.” Fed.R.Civ.P. 56(c). A \"genuine” issue is one \"that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). A \"material” issue is one that \"affect[s] the outcome of the suit....” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The burden is upon the moving party to aver the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986), and the court must view the record in the light most favorable to the non-movant, according the non-movant all beneficial inferences discemable from the evidence. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988). If a motion for summary judgment is properly supported, the burden shifts to the non-movant to show that a genuine issue exists. Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir.1983)." }, { "docid": "659152", "title": "", "text": "review in the district court....”). In conducting its review, a court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 33-34 (1st Cir.2008). Furthermore, a court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing LaCedra v. Donald W. Wyatt Det. Facility, 334 F.Supp.2d 114, 126 (D.R.I. 2004)). B. Summary Judgment Standard The Court may grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A fact is “material” if it has the potential to “affect the outcome of the suit under the governing law.” Id. A dispute is “genuine” when it “could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1s t Cir.2004). The party moving for summary judgment has the initial burden of “demonstratfing] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party must identify “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ ” which support its motion. Id. (citing Fed.R.Civ.P. 56(c)). Once a properly supported motion has been presented, the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (discussing how the burden shifts to the nonmoving party, who “must do more than simply show that there is some metaphysical doubt as to the material facts”). It is well-settled that “[t]he mere existence of a scintilla" }, { "docid": "20036784", "title": "", "text": "of Fla., Inc., 566 F.Supp.2d 24 (D.Mass.2008). Plaintiff appeals the grant of summary judgment as to her discrimination claim only. II. Discussion A. Standard of Review This court’s review of the district court’s grant of summary judgment “is de novo and not deferential.” Ricci v. Alternative Energy Inc., 211 F.3d 157, 163 (1st Cir.2000). Summary judgment is only appropriate where, “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir.2002) (citing Fed.R.Civ.P. 56(c)). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.’ ” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 (holding that in summary judgment proceeding, movant may prevail by averring that nonmoving party cannot establish an element essential to her case). “Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party’s case, the nonmoving party must come forward with facts that show a genuine issue for trial.” Carroll, 294 F.3d at 236. “At this stage, the nonmoving party ‘may not rest upon mere allegation or denials of [the movant’s] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which he would" }, { "docid": "19840056", "title": "", "text": "together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if it has the potential to “affect the outcome of the suit under the governing law.” Id. A dispute is “genuine” when it “could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir.2004). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party must demonstrate it through definite and competent evidence. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). It must identify “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ ” which support its motion. Id. (citing Fed.R.Civ.P. 56(c)). Once a properly supported motion has been presented, the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted). For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49 (1st Cir.2000). If the non-moving party establishes uncertainty as to the “true state of any material fact, the movant’s efforts should be deemed unavailing.” See Lopez & Medina Corp. v. Marsh USA, Inc., 694 F.Supp.2d 119, 123 (D.P.R.2010) (citing Suarez, 229 F.3d at 53). It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is necessary, therefore, that “a party opposing summary judgment" }, { "docid": "11576929", "title": "", "text": "622 F.3d 46, 49 (1st Cir.2010). The intention of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). “Once the moving party has properly supported [its] motion for summary judgment, the burden shifts to the non-moving party, with respect to each issue on which [it] has the burden of proof, to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997)); Cruz-Claudio v. Garcia Trucking Serv., Inc., 639 F.Supp.2d 198, 203 (D.P.R.2009.) “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (quoting J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir.1996)) (“ ‘[Njeither conclusory allegations [nor] improbable inferences’ are sufficient to defeat summary judgment.”) An issue is “genuine” if the evidence of record permits a rationale factfinder to resolve it in favor of either party. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). A fact is “material” if its existence or nonexistence has the potential to change the outcome of the suit. See Martínez v. Colon, 54 F.3d 980, 984 (1st Cir.1995). Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5-6 (1st Cir.2010). The nonmoving party must produce “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R.Civ.P. 56(e)); see also López-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir.2000); Amira-Jabbar v. Travel" }, { "docid": "11576928", "title": "", "text": "to pay tax on the entirety of that amount. Coors concludes that “the legislative record is replete with statements by key legislators, lobbyists, and politicians that prove the Special Exemption was crafted in order to shield Cervecería India from interstate competition.” (Docket No. 51-2, at 23.) “That the legislature strategically included a neutral ‘official statement of purpose’ in the statute does not change this result.” (Id.) Coors concludes that “[a] pretextual official statement of purpose cannot shield the Commonwealth from the natural consequences of its unconstitutional actions.” (Id. at 25.) As mentioned, the Secretary did not file a response in opposition to either the initial motion for summary judgment, Docket No. 51, or the renewed motion for summary judgment, Docket No. 96. B. Standard of Review Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; Meléndez v. Autogermana, Inc., 622 F.3d 46, 49 (1st Cir.2010). The intention of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). “Once the moving party has properly supported [its] motion for summary judgment, the burden shifts to the non-moving party, with respect to each issue on which [it] has the burden of proof, to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997)); Cruz-Claudio v. Garcia Trucking Serv., Inc., 639 F.Supp.2d 198, 203 (D.P.R.2009.) “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242," }, { "docid": "22840555", "title": "", "text": "upon this appeal. A. The Rule 56(c) Standard. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). Once the movant avers “an absence of evidence to support the nonmov-ing party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the latter must adduce specific facts establishing the existence of at least one issue that is both “genuine” and “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Local 48, United Brotherhood of Carpenters v. United Brotherhood of Carpenters, 920 F.2d 1047, 1050 (1st Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). The mere existence of a factual dispute, of course, is not enough to defeat summary judgment. The evidence relied upon must be “significantly probative” of specific facts, Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, which are “material\" in the sense that the dispute over them necessarily “affect[s] the outcome of the suit.” Id. at 248, 106 S.Ct. at 2510. In other words, the party opposing summary judgment must demonstrate that there are bona fide factual issues which “need to be resolved before the related legal issues can be decided.” Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989); see also Local 48, 920 F.2d at 1050-51. This court’s review of summary judgment is plenary. Garside, 895 F.2d at 48. In conducting our tamisage, we, like the district court, must view the evidentia-ry record in the light most hospitable to the nonmovant and must indulge all reasonable inferences in his favor. See, e.g., Mack, 871 F.2d at 181. We need not, however, give credence to “mere allegations,” or draw inferences where they are implausible or not supported by “specific facts.” See Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. By the same token, we cannot accept, in lieu of documented facts, concluso-ry assertions, Local 48, 920 F.2d" }, { "docid": "1682380", "title": "", "text": "factual dispute is “genuine” if it could be resolved in favor of either party, and “material” if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004). To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite and competent evidence. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party’s case, the burden shifts to the non-movant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant’s efforts should be deemed unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere existence of “some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment juncture, the Court must examine the facts in the light most favorable to the non-movant, indulging that party with all possible inferences to be derived from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The Court must review the record “taken as a whole,” and “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This is so, because credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. III. DISCUSSION A. Prima Facie Case of Disability Discrimination under ADA In her complaint, Castro alleges she was discriminated against because of her disability, and was the victim" }, { "docid": "1682379", "title": "", "text": "e-mail to supervisor claiming that she was _disabled and that he was discriminating against her._ 10/30/2003-11/3/2003 (3 days) Absences due to depression_ 11/4/2003-12/1/2003 (1 month) Absences due to depression_ 11/10/2003 P & G warned Plaintiff in writing of the need to provide proper documentation regarding absences or, otherwise, _employment would be terminated._ 12/2003_Request for transfer denied_ 1/8/2004-1/21/2004 (10 days) Absences due to chicken pox_ 3/2/2004_Plaintiffs suffered car accident and reported to SIF._ 2/16/2005 Warning (failure to file timely expense reports since _December 2003)_ 3/4/2005_Termination_ 3/30/2005_Plaintiff was released to work by the SIF. II. SUMMARY JUDGMENT STANDARD A motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which allows disposition of a case if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st Cir.2000). A factual dispute is “genuine” if it could be resolved in favor of either party, and “material” if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004). To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite and competent evidence. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party’s case, the burden shifts to the non-movant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant’s efforts should be deemed unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere existence of" }, { "docid": "19329605", "title": "", "text": "also Robin Cheryl Miller, Effect of Statute Limiting Landowner’s Liability for Personal Injury to Recreational User, 47 A.L.R.4th 262 (1986). . Plaintiff half-heartedly argues that RSA 580:14 is inapplicable here because he was injured in the water rather than on land. Although the court in Kantner v. Combustion Engineering, 701 F.Supp. 943, 946 (D.N.H.1988) declined on this basis to apply RSA 508:14 to claims brought on behalf of two men who drowned while swimming and canoeing at the base of a dam, that case is distinguishable because Collins was injured while diving from a dock attached to the land owned and operated by the defendants, whereas the plaintiffs in Kantner did not gain access to the water from the defendant’s property. . In assessing the parties’ motions, I apply the following principles. Summary judgment is appropriate \"if the pleadings, depositions, answers to interrogatories, and adipissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A \"genuine” issue is one \"that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). A \"material” issue is one that \"affect[s] the outcome of the suit....” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The burden is upon the moving party to aver the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986), and the court must view the record in the light most favorable to the non-movant, according the non-movant all beneficial inferences discemable from the evidence. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988). If a motion for summary judgment is properly supported, the burden shifts to the non-movant to show that a genuine issue exists. Donovan v. Agnew, 712 F.2d 1509," }, { "docid": "15496738", "title": "", "text": "on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be an absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007). “[A]nd a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006). The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material fact. Id. at 322, 106 S.Ct. 2548. If the moving party fails to meet this burden, then it is not entitled to summary judgment and no defense to the motion is required. Id. “For any matter on which the non-movant would bear the burden of proof at trial ..., the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir.1995); see also Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. To prevent summary judgment, “the non-moving party must come forward with ‘specific facts showing that there" }, { "docid": "19840057", "title": "", "text": "the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted). For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49 (1st Cir.2000). If the non-moving party establishes uncertainty as to the “true state of any material fact, the movant’s efforts should be deemed unavailing.” See Lopez & Medina Corp. v. Marsh USA, Inc., 694 F.Supp.2d 119, 123 (D.P.R.2010) (citing Suarez, 229 F.3d at 53). It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is necessary, therefore, that “a party opposing summary judgment must ‘present definite, competent evidence to rebut the motion.’ ” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994) (internal citation omitted). In making this assessment, the Court must take the entire record in the light most favorable to the non-moving party and draw all reasonable inferences in his or her favor. Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 779-80 (1st Cir.2011). The Court does not, however, “make credibility determinations or weigh the evidence.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The Court may safely ignore, however, “conclusory allegations, improbable inferences, acrimonious invective, or rank speculation.” Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir.2010). The First Circuit Court of Appeals has “repeatedly ... emphasized the importance of local rules similar to Local Rule 56 [of the District of Puerto Rico].” Caban Hernandez v. Philip Morris USA Inc., 486 F.3d 1, 7 (1st Cir.2007). Rules such as Local Rule 56 “are designed to function as a means of ‘focusing a district court’s attention on what is — and what is not —" }, { "docid": "23102681", "title": "", "text": "no reversible error (Part VII). III. THE SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the movant avers “an absence of evidence to support the nonmoving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the latter must establish the existence of at least one fact issue that is both “genuine” and “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990); Garside v. Oseo Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). A “genuine” issue exists if the evidentiary submissions, viewed in the light most congenial to the nonmovant, will allow a rational factfinder to find in favor of either party. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Medina-Munoz, 896 F.2d at 8. A “material” issue exists if the factual dispute necessarily “affect[s] the outcome of the suit,” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, in the sense that it “need[s] to be resolved before the related legal issues can be decided.” Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989); see also Garside, 895 F.2d at 48. Rule 56 does not invite a court to enter the realm of surmise. Evidence that is based on conjecture or farfetched supposition is not sufficient to derail the operation of the rule. See Mack, 871 F.2d at 181. By the same token, “evidence [that] is merely colorable, or [] not significantly probative” cannot forestall summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citation omitted). Even in cases involving so ineffable a matter as motive or intent, summary judgment may be warranted “if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and" }, { "docid": "2839437", "title": "", "text": "events that occurred prior to September 17, 2010. However, the Police Defendants have not shown that they are otherwise entitled to judgment as a matter of law. A. Summarg Judgment Standard of Review “The role of summary judgment is ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” PC Interiors, Ltd. v. J. Tucci Constr. Co., 794 F.Supp.2d 274, 275 (D.Mass.2011) .(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)). The burden is upon the moving party to show, based upon the discovery and disclosure materials on file, and any affidavits, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor of either party.’ ” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir.2008) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990)). “A fact is material only if it possesses the capacity to sway the outcome of the litigation under the applicable law.” Id. (quotations, punctuation and citations omitted). “Once the moving party has satisfied its burden, the burden shifts to the nonmov-ing party to set forth specific facts showing that there is a genuine, triable issue.” PC Interiors, Ltd., 794 F.Supp.2d at 275. “[T]he nonmoving party ‘may not rest upon mere allegation or denials of his pleading,’” but must set forth specific facts showing that there is a genuine issue for trial. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). “The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party’s favor.” PC Interiors, Ltd., 794 F.Supp.2d at 275. “Summary judgment is appropriate if, after viewing the record in the non-moving party’s favor, the Court determines that no genuine issue of material fact exists and the moving" }, { "docid": "23058056", "title": "", "text": "dismissed the claims against Rescue America and SLC on the grounds of defective service of process. II. PRELIMINARY DISCUSSION A. Standard of Review Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We review a grant of summary judgment de novo, examining the entire record in the light most favorable to the nonmovant and indulging all reasonable inferences in that party’s favor. Maldonado-Denis, 23 F.3d at 581 (citations omitted); Pagano v. Frank, 983 F.2d 343, 348 (1st Cir.1993). The movant must aver an “absence of evidence to support the nonmoving party’s case.” The burden then shifts to the non-movant, the party opposing summary judgment, to establish the existence of at least one fact issue which is both “genuine” and “material.” Maldonado-Denis, 23 F.3d at 581 (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (other citations omitted)). A “genuine” issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party. Id. In other words, a genuine issue exists “if there is ‘sufficient evidence supporting the claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the truth at trial.’ ” Id. (quoting Garside, 895 F.2d at 48). A “material” issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The nonmovant may not defeat a properly supported motion for summary judgment by relying upon mere allegations or evidence that is less than significantly probative. .Id. at 249-50, 106 S.Ct. at 2510-11. Rather, the nonmovant must present definite, competent evidence to rebut the motion. Maldonado-Denis, 23 F.3d at 581. B. Standing During oral argument, Appellees’ counsel raised for the first time in this ease the issue of Appellants’ standing to bring their claims. Because standing is a jurisdictional requirement which remains open to review at all" }, { "docid": "4423482", "title": "", "text": "Rule 56(c) Fed. R. Civ. P., which sets forth the standard for ruling on summary judgment motions, in pertinent part provides that they shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999). The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record. De-Novellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). A genuine issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov’t Dev. Bank of Puerto Rico, 2,1 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995). In cases where the non-movant party bears the ultimate burden of proof, he must present definite and competent evidence to rebut a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2001); Grant’s Dairy v. Comm’r of Maine Dep’t of Agric., 232 F.3d 8, 14 (1st Cir.2000), and cannot rely upon “conclusory allegations, improbable inferences, and unsupported speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st Cir.2000); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). THE SEVEN EVENTS Inasmuch as defendant has not addressed the merits of the breach of settlement agreement claim we shall limit our review to the arguments presented by DVA regarding the seven employment decisions listed in plaintiffs administrative" } ]

[ { "docid": "18466895", "title": "", "text": "their contentions. Finally, the OCC has clearly construed the National Bank Act in concert with defendants’ contentions, and its construction passes any tests of reasonableness, particularly considering the number of federal courts that have reached similar conclusions about the definition of “interest.” The federal authority directly on point, combined with analogous authority and the OCC’s construction of the statute leads this court to the conclusion that the term “interest” should be construed to include the credit card late fees at issue here. b. Because federal law governs, does the doctrine of complete preemption apply? Again, the weight of authority favors the deféndants’ position. While the OCC specifically declined to voice an opinion about the jurisdictional preemption issues related to section 85, the many courts listed above\" that defined the term “interest” to include credit card late fees also found that section 85 completely preempted state law and thus federal question jurisdiction was appropriate. See, e.g., Nelson, 794 F.Supp. at 316 (Congress intended to allow removal by creating “an exclusive federal remedy for usury claims against national banks”); Goehl, 825 F.Supp. at 1243 (finding “a clear indication of congressional intent to permit removal in cases implicating sections 85 and 86 of the NBA”); Watson, 837 F.Supp. at 149 (“the exclusive remedy provision of section 86 evinces congressional intent that usury cases against national banks are necessarily federal”); Ament v. PNC National Bank, 825 F.Supp. 1243, 1250 (W.D.Pa.1992) (“Congress did intend to permit removal.”). Again, the only contradictory authority on point is Copeland, the Colorado case. In light of the great weight of the authority, complete preemption and thus federal question jurisdiction applies. 2. Diversity Jurisdiction a. Was Minatra fraudulently joined? The National Bank Act applies to excessive credit card late fees and the remedy given by section 86 is exclusive. Under section 86, plaintiff “may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same.” 12 U.S.C. § 86 (emphasis added). Minatra is not an association, and did not take or receive" } ]

[ { "docid": "10654224", "title": "", "text": "reserve, and charge on any loan or discount made” an interest rate allowed by the state, territory, or district where located, or an interest rate tied to the district Federal Reserve Bank’s 90-day commercial paper interest rate. 12 U.S.C. § 85. Section 86 provides the penalties for taking interest in excess of the rates specified in § 85. Sections 85 and 86 preempt claims arising under state usury statutes, and other state law challenges to the rate of interest charged, regardless of whether they are denominated as usury claims. See, e.g., Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 738, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996); Phipps v. FDIC, 417 F.3d 1006, 1009 (8th Cir.2005). To be completely preempted under §§85 and 86, a claim must satisfy two basic requirements: 1) the fee or charge challenged must be “interest” within the NBA; and 2) the rate of that interest must be at issue. Smiley, 517 U.S. at 738, 116 S.Ct. 1730. Fees charged for DCC and DSA are not “interest” in its most traditional form. “Interest” under the NBA, however, is a somewhat broader concept. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 739, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). In Smiley, the Court held that late fees charged to credit card holders who did not make monthly minimum payments on time were “interest” under the NBA. Id. This holding confirms that “interest” under the NBA encompasses some variety of credit-related fees. In Smiley, the Court adopted the Comptroller of Currency’s regulations defining “interest,” under the NBA, deferring to the Comptroller’s “reasonable judgment! ]” as to the meaning of an ambiguous term in a statute he is charged with administering. Id. at 739, 116 S.Ct. 1730 (citing NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995), and Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The Comptroller of Currency (“OCC”) regulations regarding “interest” are thus the relevant guidance on what charges constitute interest" }, { "docid": "16558957", "title": "", "text": "F.3d 225 (4th Cir.1993), and to the Federal Railroad Safety Act, Rayner v. Smirl, 873 F.2d 60 (4th Cir.), cert. denied, 493 U.S. 876, 110 S.Ct. 213, 107 L.Ed.2d 166 (1989). The propriety of removal in the instant case turns on whether sections 85 and 86 of the National Bank Act (NBA) completely preempt the plaintiffs state-law claims such that these claims are really federal in nature. Although this appears to be a novel issue in the Fourth Circuit, several federal courts in other circuits have squarely confronted it. The vast majority of the courts that have addressed this issue have concluded that the National Bank Act fits within the complete preemption doctrine and thus allows removal of an action even when the complaint is based solely on state law. E.g., M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991); Goehl v. Mellon Bank, 825 F.Supp. 1239 (E.D.Pa.1993); Ament v. PNC National Bank, 825 F.Supp. 1243 (W.D.Pa.1992); Nelson v. Citibank (South Dakota) N.A., 794 F.Supp. 312 (D.Minn.1992); see also Beeman v. MBank Houston, N.A., 691 F.Supp. 1027 (S.D.Tex.1988) (holding that borrower’s claim of usury against lender bank was governed by usury provisions of the National Bank Act, entitling bank to remove suit to federal court); cf. Hill v. Chemical Bank, 799 F.Supp. 948, 952 (D.Minn.1992) (holding that § 521 of the Depository Institutions Deregulation and Monetary Control Act, which is virtually identical to § 86 of the National Bank Act, “completely preempts the field of usury claims against federally insured state banks”). The court’s research revealed only one case that has held to the contrary, Copeland v. MBNA America, N.A., 820 F.Supp. 537 (D.Colo.1993). This court is constrained to agree with the vast weight of the authority on this issue. In M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991), the Eighth Circuit Court of Appeals stated that the complete preemption doctrine “is most appropriate where Congress has created an exclusive federal remedy that displaces any overlapping or inconsistent state remedies.” Id. at 612. As the court observed, “[s]ection 86 [of the" }, { "docid": "23083221", "title": "", "text": "F.3d at 922 (citing 12 U.S.C. § 85). The NBA preempts actions challenging the lawfulness of the interest charged by a national bank. In Beneficial National Bank v. Anderson, 539 U.S. 1, 11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), the Supreme Court held sections 85 and 86 of the NBA “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant ... relies entirely on state law.” The Court reasoned “[u]niform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from ‘possible unfriendly State legislation.’ ” Id. at 10, 123 S.Ct. 2058 (citation omitted). “Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws.” Id. at 11, 123 S.Ct. 2058; see also Krispin, 218 F.3d at 922 (“We have held that sections 85 and 86 ... completely preempt state law claims of usury brought against a national bank.”). As the district court observed, the remand issue here boils down to whether the plaintiffs brought a claim of unlawful interest charged by the defendants, notwithstanding the plaintiffs’ protestations their claims focused on unlawful fees. The plaintiffs argue the loan origination and discount fees were merely “finder’s fees” paid to Equity, which they contend are excluded from the OCC’s definition of interest. However, we are required to look beyond the plaintiffs’ artful attempts to characterize their claims to avoid federal jurisdiction, M. Nahas & Co., Inc. v. First Nat’l Bank of Hot Springs, 930 F.2d 608, 611-12 (8th Cir.1991), to determine whether the plaintiffs actually allege unlawful interest claims without expressly using the word “interest.” For purposes of 12 U.S.C. § 85, interest is defined as “any payment compensating a creditor or prospective creditor for an extension of credit," }, { "docid": "12262001", "title": "", "text": "Western District of Pennsylvania 'held-that removal was proper because plaintiffs state claims were completely preempted by the NBA and thus, federal question jurisdiction existed. The court determined that it would be improper in the context of a motion to remand to decide whether “interest” as defined in sections 85 and 86 of the NBA included the fees that were the basis of plaintiffs complaint because this would improperly address the merits of the case. Id. at 1249. The court nonetheless reasoned that complete preemption applied because under the test established by the Third Circuit, section 86 of the NBA vindicated the same interests for which plaintiff sought vindication by their state law claims. Id. at 1249-50. The court determined that the late fees and other charges were related to credit extended by defendant, and plaintiffs’ suit was merely an action by borrowers against a national bank to recover allegedly improper loan related charges. Id. at 1249. Thus, the court found that plaintiffs action was aimed at safeguarding the same interest as would an action for excessive interest under section 86 of the. NBA. Additionally, the court, relying on M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991), determined that the Third Circuit’s second requirement for complete preemption was met because the NBA “constituted ‘an exclusive federal remedy, created by Congress over 100 years ago to prevent the application of overly punitive state law usury penalties against national banks.’ ” Id. at 1250 (quoting M. Nahas & Co., 930 F.2d at 612). This court finds the above authority, which was based on facts almost identical to the cases at bar, to be persuasive oil the issue of whether complete preemption applies in these cases. Given the expansive definition traditionally accorded the term “interest” un der the NBA, and that Plaintiffs’ Complaints seek recovery for charges related to the extension of credit by national banks, this court finds that sections 85 and 86 of the NBA subsume the interests for which Plaintiffs seek vindication under state law. Additionally, this court finds that there is a clear indication of" }, { "docid": "12261998", "title": "", "text": "the greater, and no more ... 12 U.S.C.-§ 85. Section 86 of the National Bank Act provides in part: The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which’the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of inter-' est has been paid, the person by whom it has been paid ... may recover back, in an action in the nature of-an action of debt, twice the amount of the interest -thus paid 12 U.S.C. § 86. Sections 85 and 86 do not define.the terms “interest” and “rate of interest.” Defendants argue that Plaintiffs rely on state laws that are designed to protect consumers from excessive charges in connection with the extension and repayment of credit. Defendants claim that section 85 of the NBA was designed to vindicate this same interest and that it exclusively governs the interest charges of national, banks. ■. Finally, Defendants argue that, section 86 of the NBA provides the exclusive federal remedy for violations of section 85. Plaintiffs claim that late fees are not governed by sections 85 and 86 of the NBA. Plaintiffs argue that sections 85 and 86 govern the amount of interest national banks may charge and that because late fees are not interest, they are not governed by sections 85 and 86. This court is aware of at least two courts that have addressed the issue of whether the NBA completely preempts state law based on facts strikingly similar to the cases at bar. In Nelson v. Citibank (South Dakota) N.A., 794 F.Supp. 312 (D.Minn.1992), credit card customers brought an action in Minnesota state court against national banks challenging their practice of charging late fees and over limit fees on credit card accounts. The defendant banks removed the action to federal court based on sections 85 and 86 of the NBA and the plaintiffs moved to remand the action to state court." }, { "docid": "18466899", "title": "", "text": "Hill v. Chemical Bank, 799 F.Supp. 948, 954 (D.Minn. 1992). . See Citizens' Nat’l Bank v. Donnell, 195 U.S. 369, 373-74, 25 S.Ct. 49, 49-50, 49 L.Ed. 238 (1904) (charges for failure to pay an account when due); Northway Lanes v. Hackley Union Nat’l Bank & Trust Co., 464 F.2d 855 (6th Cir. 1972) (closing costs charged on real estate loans); Fisher v. First Nat’l Bank, 548 F.2d 255, 258-59 (8th Cir.1977) (cash advance fees on credit cards); Cades v. H & R Block, Inc., 43 F.3d 869 (4th Cir.1994) (flat charges for tax refund anticipation loans); Cronkleton v. Hall, 66 F.2d 384, 387-88 (8th Cir.1933) (bonuses and commissions paid to a lender); Panos v. Smith, 116 F.2d 445, 446 (6th Cir.1940) (charges for mortgage taxes and recording fees); American Timber & Trading Co. v. First Nat’l Bank, 690 F.2d 781, 787 (9th Cir.1982) (compensating balance requirements). . See Letter from Julie Williams, OCC Chief Counsel (Feb. 17, 1995). . This court suggests that the answer would likely be \"no.” . Plaintiff contends that there are many questions that must be asked of Minatra before a conclusive determination of her appropriate role in this case can be made, and thus those unresolved questions, for purposes of defendants' motion to dismiss, should be resolved in plaintiffs favor. She asks: What authority did she have with the Defendants? What knowledge did she possess regarding the application of late penalties charged by the Defendants? What knowledge does she have regarding the collection of late fees? What part does she play in charging late fees to the putative class’s accounts? What responsibility does she have in overseeing local accounting practices as regards the application of the late fees to the various customers’ accounts? (Pla.Obj. at p. 5). . The Eastern District of Pennsylvania has held, under very similar facts: Given the expansive definition traditionally accorded the term \"interest” under the NBA, and that Plaintiff's Complaints seek recovery for charges related to the extension of credit by national banks, this court finds that sections 85. and 86 of the NBA subsume the interests for which" }, { "docid": "3252939", "title": "", "text": "at 1544. See also Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d at 93 (“The doctrine of complete preemption applies only ... when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiffs cause of action seeks to vindicate”); Willy v. Coastal Corp., 855 F.2d 1160, 1165 (5th Cir.1988) (“a federal action cannot be found to so completely displace state claims ... unless there would have been a federal cause of action under the pre-empting federal law”), aff'd on other grounds, 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). Third and finally, the jurisdictional and enforcement provisions in the LMRA or ERISA must have a close parallel in the federal claims at issue. In Taylor, the Supreme Court emphasized that, even with ERISA’s extensive civil enforcement provisions, it “would be reluctant to find that extraordinary pre-emptive power,” 481 U.S. at 65, 107 S.Ct. at 1547, but for the fact that ERISA’s civil enforcement provision paralleled those in the LMRA, a statute where the Court had previously found such power. Id. Defendants point to several eases holding that §§ 85 and 86 of the National Bank Act both “pre-empt” and “completely pre-empt” state-law claims challenging “interest” charged by a nationally chartered bank, and thus that such claims are removable from state to federal court. See, e.g., M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991); Moss v. Southtrust Mobile Services, civil action no. 95-P-1647-W (N.DAla. Sept. 22, 1995) (Pointer, J.); Hunter v. Rich’s Department Store, 938 F.Supp. 789 civil action no. 95-PT-1548-S (N.D.Ala. Aug. 31, 1995) (Propst, J.). Plaintiffs point to cases to the contrary. See, e.g., Spellman v. Meridian Bank, — F.3d -, 1995 WL 764548 (3rd Cir. Dec. 29,1995). However, whether §§85 and 86 of the National Bank Act completely pre-empt a state-law claim challenging the interest of a national bank is a difficult issue this court need not reach. HI. . Plaintiffs contend that they are making only a fraud claim, that is, that defendants fraudulently failed to disclose certain charges" }, { "docid": "12261999", "title": "", "text": "the interest charges of national, banks. ■. Finally, Defendants argue that, section 86 of the NBA provides the exclusive federal remedy for violations of section 85. Plaintiffs claim that late fees are not governed by sections 85 and 86 of the NBA. Plaintiffs argue that sections 85 and 86 govern the amount of interest national banks may charge and that because late fees are not interest, they are not governed by sections 85 and 86. This court is aware of at least two courts that have addressed the issue of whether the NBA completely preempts state law based on facts strikingly similar to the cases at bar. In Nelson v. Citibank (South Dakota) N.A., 794 F.Supp. 312 (D.Minn.1992), credit card customers brought an action in Minnesota state court against national banks challenging their practice of charging late fees and over limit fees on credit card accounts. The defendant banks removed the action to federal court based on sections 85 and 86 of the NBA and the plaintiffs moved to remand the action to state court. The United States District Court for the District of Minnesota held that the NBA completely preempted plaintiffs’ state law actions and removal to federal court was proper. The court, relying largely on Fisher v. First National Bank, 548 F.2d 255 (8th Cir.1977); rejected plaintiffs’ arguments that the definition of interest under section 85 was limited to periodic interest charges. The court determined that interest under section 85 could not be defined narrowly to include only periodic interest charges, but included flat fees as well. In Ament v. PNC National Bank, 825 F.Supp. 1243 (W.D.Pa.1992), plaintiff, a credit card holder of defendant national bank, brought an action in state court claiming that annual fees, late payment charges, returned check charges, and over limit charges that defendant assessed were illegal under Pennsylvania law. Plaintiff asserted purely state law causes of action. Defendant removed the action to federal court claiming federal question jurisdiction because the NBA completely preempted plaintiffs state law claims. Plaintiff moved to remand the case to state court. The United States District Court for the" }, { "docid": "12566072", "title": "", "text": "sections; to do so would be to address the merits of the controversy, which this court need not — -and should not — do when deciding_ the jurisdictional issue. See Railway Labor Executives Assoc., 858 F.2d at 942. Rather, the only question to be decided is whether there is any distinction between the interests sought to be vindicated by section 86 of the NBA and by the lawsuits brought by the plaintiffs. In arguing that these are, in fact, parallel interests, the defendants point out that'the Comptroller of the Currency has authorized national banks to engage in credit card programs as an exercise of the lending powers granted to them under the NBA. 12 C.F.R. § 7.7378; 12 U.S.C. § 24 (Seventh) (authority to lend money on personal security). The late fees and other charges about which plaintiffs complain are levied in connection with credit extended to credit card holders. Therefore, in defendants’ view, plaintiffs’ suits are merely actions by borrowers against national banks to recover allegedly improper loan-related charges. Both interest and these fees and charges are “credit-related charges.” Plaintiffs’ cases are thus aimed at safeguarding the same interest as would be an action for allegedly excessive interest, which is governed by section 86 of the NBA. Defendants argue that the Pennsylvania laws relied upon by plaintiffs and section 86 of the NBA both regulate “charges a national bank may impose in connection with the extension and repayment of credit.” Therefore, in their view, cases squarely within the purview of the NBA (i.e., those concerning a dispute as to the interest rate charged on credit cards or for a loan) and cases such as plaintiffs’ (involving late fees and other special charges) protect the same interest in seeking to prevent national banks from levying excessive credit-related charges. Defendants correctly note that federal law need not provide the same remedy as state law in order to vindicate the same interest. For example, in the ERISA context, ERISA has been held to preempt claims asserted under state law even when the state law claims would, if proven, entitle a plaintiff to" }, { "docid": "12566074", "title": "", "text": "types of damages that are not available under ERISA. See Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir.1989). Thus, it is immaterial that the Pennsylvania statutes plaintiffs cite authorize treble damages which, of course, would not be available under the NBA. In response, plaintiffs argue that there is no federal remedy for allegedly excessive or improper annual fees, late charges, return check charges or over-credit limit charges. Indeed, no federal statute explicitly grants plaintiffs a cause of action to recover those assessments. Further, plaintiffs contend section 86 of the NBA does not implicitly provide a cause of action for these assessments because they are not “interest.” In pre-argument briefing, plaintiffs cited two cases in support of their position. Greenwood Trust Co. v. Massachusetts, 776 F.Supp. 21 (D.Mass.1991) (appeal pending), and Perdue v. Crocker National Bank, 38 Cal.3d 913, 216 Cal.Rptr. 345, 702 P.2d 503 (1985). On August 6, 1992, however, the United States Court of Appeals for the First Circuit overturned the district court’s decision in Greenwood Trust. See Greenwood Trust Co. v. Massachusetts, 971 F.2d 818 (1st Cir.1992). In doing so, .the court ruled that under both federal common law and- the law of the state of Delaware (where the Greenwood Trust -Company was located), late charges are “interest” for purposes of section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (the “DIDA”), which is modeled on section 85 of the NBA. Id. at 830-31. It would appear, then, that Greenwood Trust supports the defendants’, rather than the plaintiffs’, position. Plaintiffs also relied upon Perdue, a state-court case that, though interesting, is ultimately non-binding. In Perdue, the California Supreme Court ruled, inter alia, that federal law did not preempt state law with respect to charges imposed by a national bank for cheeks returned for insufficient funds. .-The issue in Perdue was a substantive preemption issue, not a jurisdictional “complete preemption” issue. The defendants in Perdue argued that the court should dismiss the plaintiffs’ complaint, which’ was based upon state law, because various federal laws regulated the field of national bank service charges. Perdue," }, { "docid": "23083222", "title": "", "text": "usury laws.” Id. at 11, 123 S.Ct. 2058; see also Krispin, 218 F.3d at 922 (“We have held that sections 85 and 86 ... completely preempt state law claims of usury brought against a national bank.”). As the district court observed, the remand issue here boils down to whether the plaintiffs brought a claim of unlawful interest charged by the defendants, notwithstanding the plaintiffs’ protestations their claims focused on unlawful fees. The plaintiffs argue the loan origination and discount fees were merely “finder’s fees” paid to Equity, which they contend are excluded from the OCC’s definition of interest. However, we are required to look beyond the plaintiffs’ artful attempts to characterize their claims to avoid federal jurisdiction, M. Nahas & Co., Inc. v. First Nat’l Bank of Hot Springs, 930 F.2d 608, 611-12 (8th Cir.1991), to determine whether the plaintiffs actually allege unlawful interest claims without expressly using the word “interest.” For purposes of 12 U.S.C. § 85, interest is defined as “any payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended.” 12 C.F.R. § 7.4001(a). Among other things, interest includes certain fees associated with credit extension or availability, such as “numerical periodic rates, late fees, creditor-imposed not sufficient funds (NSF) fees ..., overlimit fees, annual fees, cash advance fees, and membership fees.” Id. However, interest “does not ordinarily include appraisal fees, premiums and commissions attributable to insurance guaranteeing repayment of any extension of credit, finder’s fees, fees for document preparation or notarization, or fees incurred to obtain credit reports.” Id. If any of the fees charged in the present case fall within the definition of interest, the NBA preempts those claims and removal of the entire case was proper. See Gaming Corp. of Am., 88 F.3d at 543. The Supreme Court has held various fees, such as late fees, are not excluded from the NBA’s definition of interest simply because the fees do not vary depending on the amount owed or the length" }, { "docid": "12262000", "title": "", "text": "The United States District Court for the District of Minnesota held that the NBA completely preempted plaintiffs’ state law actions and removal to federal court was proper. The court, relying largely on Fisher v. First National Bank, 548 F.2d 255 (8th Cir.1977); rejected plaintiffs’ arguments that the definition of interest under section 85 was limited to periodic interest charges. The court determined that interest under section 85 could not be defined narrowly to include only periodic interest charges, but included flat fees as well. In Ament v. PNC National Bank, 825 F.Supp. 1243 (W.D.Pa.1992), plaintiff, a credit card holder of defendant national bank, brought an action in state court claiming that annual fees, late payment charges, returned check charges, and over limit charges that defendant assessed were illegal under Pennsylvania law. Plaintiff asserted purely state law causes of action. Defendant removed the action to federal court claiming federal question jurisdiction because the NBA completely preempted plaintiffs state law claims. Plaintiff moved to remand the case to state court. The United States District Court for the Western District of Pennsylvania 'held-that removal was proper because plaintiffs state claims were completely preempted by the NBA and thus, federal question jurisdiction existed. The court determined that it would be improper in the context of a motion to remand to decide whether “interest” as defined in sections 85 and 86 of the NBA included the fees that were the basis of plaintiffs complaint because this would improperly address the merits of the case. Id. at 1249. The court nonetheless reasoned that complete preemption applied because under the test established by the Third Circuit, section 86 of the NBA vindicated the same interests for which plaintiff sought vindication by their state law claims. Id. at 1249-50. The court determined that the late fees and other charges were related to credit extended by defendant, and plaintiffs’ suit was merely an action by borrowers against a national bank to recover allegedly improper loan related charges. Id. at 1249. Thus, the court found that plaintiffs action was aimed at safeguarding the same interest as would an action for" }, { "docid": "18466900", "title": "", "text": "are many questions that must be asked of Minatra before a conclusive determination of her appropriate role in this case can be made, and thus those unresolved questions, for purposes of defendants' motion to dismiss, should be resolved in plaintiffs favor. She asks: What authority did she have with the Defendants? What knowledge did she possess regarding the application of late penalties charged by the Defendants? What knowledge does she have regarding the collection of late fees? What part does she play in charging late fees to the putative class’s accounts? What responsibility does she have in overseeing local accounting practices as regards the application of the late fees to the various customers’ accounts? (Pla.Obj. at p. 5). . The Eastern District of Pennsylvania has held, under very similar facts: Given the expansive definition traditionally accorded the term \"interest” under the NBA, and that Plaintiff's Complaints seek recovery for charges related to the extension of credit by national banks, this court finds that sections 85. and 86 of the NBA subsume the interests for which plaintiffs seek vindication under state law. Additionally, this court finds that there is a clear indication of Congressional intent to permit removal in cases implicating sections 85 and 86 of the NBA. Accordingly, removal was proper in this case based on federal question jurisdiction. Goehl v. Mellon Bank,-825 F.Supp. 1239, 1242-43 (E.D.Pa.1993). . What is not clear at this point are the following: (1) Whether the National Bank Act preempts the claim that the late fee is charged prior to the ten day default period required by Alabama law. (2) Whether the claim related to the fee being charged without regard to the amount of the cardholder's scheduled payment due, etc. is preempted by said Act. (3) Whether the \"fee” or \"interest” charged is legal under said Act." }, { "docid": "12566077", "title": "", "text": "usury laws seek to vindicate the same interest as that at issue in plaintiffs’ cases, however. Thus, Perdue is., not instructive. Cases cited by plaintiffs in post-argument briefing before this court are similarly unpersuasive. See, e.g., Stoorman v. Greenwood Trust Co., No. 92-C-493, 1992 WL 512162 (D.Colo. September 22, 1992) (discussion of federal question jurisdiction focused solely on the allegations of the complaint). Thus, in summary, this court concludes that section 86 of the NBA vindicates the same interest that plaintiffs seek to vindicate in the lawsuits .before this court. B. Congressional Intent to Permit Removal Defendants rely on M. Nahas & Go., Inc. v. First National Bank of Hot Springs, 930 F.2d 608 (8th Cir.1991), to argue that Congress'intended that section 86 of the NBA would completely preempt state-law claims of the type at issue here. Indeed, M. Nahas is particularly instructive. In that ease, the United States Court of Appeals for the Eighth Circuit decided'that section 86 of the NBA constituted “an exclusive federal remedy, created by Congress over 100 years ago to prevent the application of overly-punitive state law usury penalties against national banks.” M. Nahas, 930 F.2d at 612. Of course, M. Nahas is to be distinguished factually from the cases before this court. In M. Nahas, plaintiff had borrowed money from a national bank and had been charged interest in excess of the rate permitted by his home state. He asserted a state-law usury claim, which the court ruled was completely preempted by section 86, the usury provision applying to national banks. Thus, for M. Nahas to be relevant, this court would have to find that the subject’matter of the plaintiffs’ claims is, as a practical matter, the same as a usury claim, a conclusion I have already reached. See Tikkanen v. Citibank (South Dakota) N.A., 801 F.Supp. 270 (D.Minn.1992); Hill v. Chemical Bank, 799 F.Supp. 948 (D.Minn.1992). Accordingly, I find that M. Nahas provides meaningful insight in examining whether Congress intended that national banks not be regulated by the states in this area. Removal to federal court has been deemed improper in other areas" }, { "docid": "16558963", "title": "", "text": "requirements which are independent of a numerical percentage rate”), cert. denied, — U.S. -, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993). Accordingly, the court concluded that the actions were properly removed. Nelson, 794 F.Supp. at 320; accord Goehl v. Mellon Bank, 825 F.Supp. 1239 (E.D.Pa.1993); cf. Ament v. PNC Nat’l Bank, 825 F.Supp. 1243 (W.D.Pa.1992) (upholding removal, but specifically refusing to reach the question of whether various fees were “interest” within sections 85 and 86). But see Copeland v. MBNA America, N.A., 820 F.Supp. 537, 540-41 (D.Colo.1993) (concluding that removal was improper because the plain meaning of the term “interest” was not a “clear manifestation of congressional intent” to allow complete preemption in these cases). This court accepts the view that the credit card overlimit fees challenged in this case are “interest” for purposes of sections 85 and 86 of the National Bank Act. Accordingly, the plaintiffs state-law action falls within the ambit of sections 85 and 86 of the National Bank Act. Because these provisions of the NBA completely preempt state usury laws with regard to national banks, the plaintiffs action is truly federal in nature, and the case was properly removed. For the foregoing reasons, the plaintiffs motion to remand is hereby denied. IT IS SO ORDERED. . Section 85 of the National Bank Act, which limits the amount of interest that a national bank may charge, provides in relevant part: Any association may take, receive, reserve, and charge on any loan ... or other evidence of debt, interest at the rate allowed by the laws of the State ... where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more.... 12 U.S.C. § 85. Section 86, which is the exclusive federal remedy for usurious interest, M. Nahas & Co. v. First National Bank, 930 F.2d 608, 610-11 (8th Cir.1991), provides in relevant part: The taking, receiving, reserving, or charging a" }, { "docid": "16558961", "title": "", "text": "(finding “a clear indication of Congressional intent to permit removal in cases implicating sections 85 and 86 of the NBA”); Ament v. PNC Nat’l Bank, 825 F.Supp. 1243, 1250-51 (W.D.Pa.1992) (finding that “Congress did intend to permit removal”). Contra Copeland, 820 F.Supp. at 541. This court concurs with the majority view that the exclusive remedy provision of section 86 of the NBA evidences congressional intent that usury cases against national banks are necessarily federal. In M. Nahas the plaintiffs action presented a direct conflict between state usury laws and the National Bank Act because the plaintiff alleged that the defendant had charged an excessive rate of interest on a loan. The holding of M. Nahas has been applied to several cases whose facts are strikingly simi lar to the case at bar. For example, in Nelson v. Citibank (South Dakota), N.A., 794 F.Supp. 312 (D.Minn.1992), the plaintiffs brought actions against national banks, challenging the defendant banks’ practice of charging late fees and overlimit charges, in addition to periodic interest, on credit card accounts. The defendants removed the plaintiffs’ state-law actions pursuant to M. Nahas’s conclusion that sections 85 and 86 of the National Bank Act completely preempt state-law usury claims. The defendants asserted that late fees and overlimit charges constitute interest for purposes of these provisions of the NBA. Id. at 316. The Nelson court agreed with the defendants. Although the court recognized that the term “interest” as used in sections 85 and 86 is not defined in the statute, id. at 317, the court nevertheless accepted the defendant’s position that “courts have uniformly taken an expansive view of ‘interest,’ applying sections 85 and 86 to numerous charges other than periodic interest rates.” Id. at 318. The court concluded that flat fees such as late and overlimit fees are interest for purposes of section 85 and 86. Id. at 318-20 (citing Fisher v. First Nat’l Bank, 548 F.2d 255 (8th Cir.1977)); see also Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 829-30 (1st Cir.1992) (accepting the view that “the term ‘interest’ ... encompass[es] a variety of lender-imposed fees and financial" }, { "docid": "16558956", "title": "", "text": "1546. If an area of law is completely preempted, then any state-law complaint based on that law arises under federal law for purposes of the well-pleaded complaint rule. Caterpillar, Inc. 482 U.S. at 393, 107 S.Ct. at 2430. Presently, the United States Supreme Court has applied the complete preemption doctrine in only three areas. See Metropolitan Life, 481 U.S. 58, 107 S.Ct. 1542 (holding that state contract and tort claims are completely preempted by § 502(a)(1)(B) and (f) of ERISA); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (holding that state-law claim for possession of Indian tribal land is completely preempted by federal law); Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (holding that § 301 of the LMRA completely preempts a state cause of action for violation of contracts between an employer and a labor organization). In addition, the Fourth Circuit Court of Appeals has applied the complete preemption doctrine to federal copyright law, Rosciszewski v. Arete Assocs., 1 F.3d 225 (4th Cir.1993), and to the Federal Railroad Safety Act, Rayner v. Smirl, 873 F.2d 60 (4th Cir.), cert. denied, 493 U.S. 876, 110 S.Ct. 213, 107 L.Ed.2d 166 (1989). The propriety of removal in the instant case turns on whether sections 85 and 86 of the National Bank Act (NBA) completely preempt the plaintiffs state-law claims such that these claims are really federal in nature. Although this appears to be a novel issue in the Fourth Circuit, several federal courts in other circuits have squarely confronted it. The vast majority of the courts that have addressed this issue have concluded that the National Bank Act fits within the complete preemption doctrine and thus allows removal of an action even when the complaint is based solely on state law. E.g., M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991); Goehl v. Mellon Bank, 825 F.Supp. 1239 (E.D.Pa.1993); Ament v. PNC National Bank, 825 F.Supp. 1243 (W.D.Pa.1992); Nelson v. Citibank (South Dakota) N.A., 794 F.Supp. 312 (D.Minn.1992); see also Beeman v." }, { "docid": "16558960", "title": "", "text": "preempted and removal was appropriate.” Id. at 63. In addition, in Rosciszewski v. Arete Assocs., 1 F.3d 225 (4th Cir.1993), the court stated: “[I]n deciding whether the preemptive force of the Copyright Act is so extraordinary that a state-law claim, preempted by § 301(a), becomes federal in nature, the focus of our inquiry must be congressional intent.” Id. at 231 (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1548, 95 L.Ed.2d 55 (1987)). Admittedly, whether Congress intended the National Bank Act to completely preempt state-law in this area is problematic because the Act, passed in 1865, “predates the well-pleaded complaint rule, complete preemption, and, in fact, federal question jurisdiction.” Copeland v. MBNA America, N.A., 820 F.Supp. 537, 540 (D.Colo.1993). Nevertheless, several courts have concluded that Congress intended to allow removal by creating “an exclusive federal remedy for usury claims against national banks.” Nelson v. Citibank (South Dakota), N.A., 794 F.Supp. 312, 316 (D.Minn.1992); accord M. Nahas, 930 F.2d at 612; Goehl v. Mellon Bank, 825 F.Supp. 1239, 1243 (E.D.Pa.1993) (finding “a clear indication of Congressional intent to permit removal in cases implicating sections 85 and 86 of the NBA”); Ament v. PNC Nat’l Bank, 825 F.Supp. 1243, 1250-51 (W.D.Pa.1992) (finding that “Congress did intend to permit removal”). Contra Copeland, 820 F.Supp. at 541. This court concurs with the majority view that the exclusive remedy provision of section 86 of the NBA evidences congressional intent that usury cases against national banks are necessarily federal. In M. Nahas the plaintiffs action presented a direct conflict between state usury laws and the National Bank Act because the plaintiff alleged that the defendant had charged an excessive rate of interest on a loan. The holding of M. Nahas has been applied to several cases whose facts are strikingly simi lar to the case at bar. For example, in Nelson v. Citibank (South Dakota), N.A., 794 F.Supp. 312 (D.Minn.1992), the plaintiffs brought actions against national banks, challenging the defendant banks’ practice of charging late fees and overlimit charges, in addition to periodic interest, on credit card accounts. The defendants" }, { "docid": "16558962", "title": "", "text": "removed the plaintiffs’ state-law actions pursuant to M. Nahas’s conclusion that sections 85 and 86 of the National Bank Act completely preempt state-law usury claims. The defendants asserted that late fees and overlimit charges constitute interest for purposes of these provisions of the NBA. Id. at 316. The Nelson court agreed with the defendants. Although the court recognized that the term “interest” as used in sections 85 and 86 is not defined in the statute, id. at 317, the court nevertheless accepted the defendant’s position that “courts have uniformly taken an expansive view of ‘interest,’ applying sections 85 and 86 to numerous charges other than periodic interest rates.” Id. at 318. The court concluded that flat fees such as late and overlimit fees are interest for purposes of section 85 and 86. Id. at 318-20 (citing Fisher v. First Nat’l Bank, 548 F.2d 255 (8th Cir.1977)); see also Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 829-30 (1st Cir.1992) (accepting the view that “the term ‘interest’ ... encompass[es] a variety of lender-imposed fees and financial requirements which are independent of a numerical percentage rate”), cert. denied, — U.S. -, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993). Accordingly, the court concluded that the actions were properly removed. Nelson, 794 F.Supp. at 320; accord Goehl v. Mellon Bank, 825 F.Supp. 1239 (E.D.Pa.1993); cf. Ament v. PNC Nat’l Bank, 825 F.Supp. 1243 (W.D.Pa.1992) (upholding removal, but specifically refusing to reach the question of whether various fees were “interest” within sections 85 and 86). But see Copeland v. MBNA America, N.A., 820 F.Supp. 537, 540-41 (D.Colo.1993) (concluding that removal was improper because the plain meaning of the term “interest” was not a “clear manifestation of congressional intent” to allow complete preemption in these cases). This court accepts the view that the credit card overlimit fees challenged in this case are “interest” for purposes of sections 85 and 86 of the National Bank Act. Accordingly, the plaintiffs state-law action falls within the ambit of sections 85 and 86 of the National Bank Act. Because these provisions of the NBA completely preempt state usury laws with" }, { "docid": "12566073", "title": "", "text": "and charges are “credit-related charges.” Plaintiffs’ cases are thus aimed at safeguarding the same interest as would be an action for allegedly excessive interest, which is governed by section 86 of the NBA. Defendants argue that the Pennsylvania laws relied upon by plaintiffs and section 86 of the NBA both regulate “charges a national bank may impose in connection with the extension and repayment of credit.” Therefore, in their view, cases squarely within the purview of the NBA (i.e., those concerning a dispute as to the interest rate charged on credit cards or for a loan) and cases such as plaintiffs’ (involving late fees and other special charges) protect the same interest in seeking to prevent national banks from levying excessive credit-related charges. Defendants correctly note that federal law need not provide the same remedy as state law in order to vindicate the same interest. For example, in the ERISA context, ERISA has been held to preempt claims asserted under state law even when the state law claims would, if proven, entitle a plaintiff to types of damages that are not available under ERISA. See Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir.1989). Thus, it is immaterial that the Pennsylvania statutes plaintiffs cite authorize treble damages which, of course, would not be available under the NBA. In response, plaintiffs argue that there is no federal remedy for allegedly excessive or improper annual fees, late charges, return check charges or over-credit limit charges. Indeed, no federal statute explicitly grants plaintiffs a cause of action to recover those assessments. Further, plaintiffs contend section 86 of the NBA does not implicitly provide a cause of action for these assessments because they are not “interest.” In pre-argument briefing, plaintiffs cited two cases in support of their position. Greenwood Trust Co. v. Massachusetts, 776 F.Supp. 21 (D.Mass.1991) (appeal pending), and Perdue v. Crocker National Bank, 38 Cal.3d 913, 216 Cal.Rptr. 345, 702 P.2d 503 (1985). On August 6, 1992, however, the United States Court of Appeals for the First Circuit overturned the district court’s decision in Greenwood Trust. See Greenwood Trust Co. v." } ]

[ { "docid": "17752913", "title": "", "text": "admiralty; but it was there earnestly maintained by the defendant in error that this was not a maritime tort, that a court of admiralty was without jurisdiction, and that the Compensation Act therefore applied and took away all remedy except the special remedy therein provided. We there held that there was a remedy in admiralty, and that ruling is sustained by many recent decisions of the Supreme Court. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; S. P. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 9.00; Grant- Smith Porter Ship Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321; State Industrial Commission v. Nordenholt Corporation, 259 U. S. 263, 42 Sup. Ct. 473, 66 L. Ed. 933 (decided May 29, 1922); Great Lakes Dredge & Dock Co. v. Kierejewski, 43 Sup. Ct. 418, 67 L. Ed. — (decided April 9, 1923). The questions determined on the former writ of error have become the law of the case for the court below and for this court. Roberts v. Cooper, 20 How. 467, 481, 15 L. Ed. 969; Standard Sewing Mach. Co. v. Leslie, 118 Fed. 557, 55 C. C. A. 323. This rule, however, does not preclude us from giving effect to later controlling decisions of the Supreme Court of the United States or of the state in a proper case. Messinger v. Anderson, 225 U. S. 436, 444, 32 Sup. Ct. 739, 56 L. Ed. 1152. And in this connection our attention has been called to State Industrial Insurance Commission v. Nordenholt Corporation, supra, decided since this case was remanded to the court below. The conflict between the two cases is not apparent. The claim of conflict between the Washington Compensation Act and the admiralty law is based upon a misapprehension as to the scope and effect of the Compensation Act. In the Rohde Case the Supreme Court said: “The Injury was" } ]

[ { "docid": "17879654", "title": "", "text": "Co., 260 U. S. 245, 43 S. Ct. 83, 67 L. Ed. 237; Lake Superior Consolidated Iron Mines v. Lord, 271 U. S. 577, 46 S. Ct. 627, 70 L. Ed. 1093; Cargill Co. v. Minnesota, 180 U. S. 452, 21 S. Ct. 423, 45 L. Ed. 619; Carley & Hamilton v. Snook, 281 U. S. 66, 50 S. Ct. 204, 74 L. Ed. 704, 68 A. L. R. 194; State v. Kozer, 116 Or. 581, 242 P. 621, 624; Dohs v. Holm, 152 Minn. 529, 189 N. W. 418; Utah Power & light Co. v. Pfost (D. C.) 52 F.(2d) 226; Louis v. Boynton (D. C., Kan., Three-Judge case) 53 F.(2d) 471; 6 R. C. L. 373, 384, 385. The power to regulate and to tax being conceded, the details of the legislation and the exceptions which shall be made rest primarily with the Legislature. It is a well-established rule that, whenever the classification is called in question, if a state of facts reasonably can he conceived that would sustain it, the existence of that state of facts must be assumed. In American Sugar Refining Co. v. Louisiana, supra, the court said: “But from time out of mind it has been the policy of this government, not only to classify for purposes of taxation, but to exempt producers from the taxation of the methods employed by them to put their products upon the market.” In Clark v. Kansas City, supra, there was involved a statute providing for the annexation of lands to a municipality. The act contained the following exemption: “But nothing in this act shall he taken or held to apply to any tract or tracts of land used for agricultural purposes when the same is not owned by any railroad or other corporation.” The court, in sustaining the exemption, said: “We think the distinction is justified by the principle of the eases we have cited. That principle leaves to the state the adaptation of its laws to its conditions. The growth of cities is inevitable, and in providing for their expansion it may be the judgment of" }, { "docid": "7868390", "title": "", "text": "ruled first on the Street car company’s motion for a directed verdict; a verdict was so directed and taken. Then, the court sustained the motion to dismiss the cause, without prejudice, as to the receivers. Appellant contends that the trial court was without jurisdiction to direct a verdict as to the street ear company because, at the1 time it was so directed, the receivers had been dismissed out of the cause, which left a controversy solely between citizens of the same state, over which the court had no power except to remand to the state court. This contention rests upon two grounds. The first is that, under the Oklahoma statute, the plaintiff had an absolute right to dismiss her case at the time she attempted to do so. The right to dismiss a law action is governed by the state statute, and decisions construing it. Alsop v. McCombs (C. C. A. 8) 253 F. 949; Chicago, M. & St. P. Ry. Co. v. Metalstaff (C. C. A. 8) 101 F. 769. The Oklahoma statute (Oída. Stat. 1931, § 418) provides: “An action may be dismissed, without prejudice to a future action: First. By the plaintiff, before the final submission of the ease to the jury, or to the court, where the trial is by the court.” This statute is verbatim with the Kansas statute. The Kansas Supreme Court, in a. line of decisions running back to 1877 (St. Joseph & D. C. Rld. Co. v. Dryden, 17 Kan. 278), has held that where a demurrer to the evidence is interposed and submitted to the court for its decision, it is a final submission of the legal issues of the cause, within the meaning of this statute, and that the plaintiff thereafter may not dismiss as a matter of right. See Cott v. Baker, 112 Kan. 115, 210 P. 651, which reviews the earlier authorities. The Oklahoma Supreme Court has adopted the same wholesome rule. In Chicago, R. I. & P. Railway Co. v. Reynolds, 157 Okl. 268, 12 P.(2d) 208, the decision of Cott v. Baker, supra, was cited and" }, { "docid": "4164372", "title": "", "text": "rule that where Congress has spoken touching a matter of procedure or regulation within its constitutional competence, it is exclusive of any state statute or regulation of the subject-matter. Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S. 458, 24 L. Ed. 251; White v. Wansey, 116 Fed. 347, 53 C. C. A. 634; Travis v. Ins. Co., 104 Fed. 486, 43 C. C. A. 653. This rule has been held to apply to the matter of impaneling jurors. Walker et al. v. Collins et al., 50 Fed. 737, 1 C. C. A. 642; Pointer v. U. S., 151 U. S. 397, 14 Sup. Ct. 410, 38 L. Ed. 208; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117. Congress has spoken on this subject. Section 812, vol. 1, Comp. St. 1901, p. 627, declares that: “No person shall be summoned as a juror in any Circuit or District Court more than once in two years, and it shall be sufficient cause of challenge to any juror called to be sworn in any case that he has been summoned and attended said court as juror at any term of said court held within two years prior to the time of such challenge.” By the amendment of June 30, 1879, c. 52, § 2, 21 Stat. 43 (U. S. Comp. St. 1901, p. 624), the two years’ provision was reduced to one year. Clearly enough, the statute has exclusive reference to the like service performed in the United States court, for it distinctly says the qualification shall extend “to any juror called to be sworn in any cause that he has been summoned and attended said court.” Evidently, the term “said court” refers back to the Circuit or District Court of the United' States where the jurors are called to serve. He who complains of an erroneous ruling must make that error appear affirmatively. The question asked and answered should have been followed up with, the further inquiry as to whether or not the juror had been summoned and attended within the year preceding" }, { "docid": "6001440", "title": "", "text": "Traction Co., 62 N. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837; City of Emporia v. Emporia Ry. & Light Co., 92 Kan. 232, 139 Pac. 1185; Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. 309, 37 Am. St. Rep. 312; Rutherford v Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84; State ex rel. Grinsfelder v. Spokane St. Ry Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739; State ex rel. Lewis v. Hodge, 90 Wash. 487, 156 Pac. 404; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, (N. Y.) 543; State ex rel. J. A. Dennison v. Seattle, Renton & So. Ry. Co., 64 Wash. 167, 116 Pac. 638; State ex rel. Linhoff v. S. R. & S. Ry. Co., 62 Wash. 544, 114 Pac. 431; State ex rel. City of Seattle v. S. & R. V. Ry. Co., 113 Wash. 684, 194 Pac. 820, 15 A. L. R. 1194; Bailey on Habeas Corpus, etc., vol. 2, pp. 776, 777; Kelly v. Grand Circle W of W. (C. C.) 129 Fed. 830; Bath County v. Amy, 13 Wall. 244, 20 L. Ed. 539; Mystic Milling Co. v. Chi., M. & St. P. Ry. Co. (C. C.) 132 Fed. 289; Indiana v. Lake Erie & W. R. Co. (C. C.) 85 Fed. 1; Robinson v. Campbell, 3 Wheat. 212, 4 L. Ed. 372, 376; Thompson v. Central Ohio R. R. Co., 73 U. S. (6 Wall.) 134, 18 L. Ed. 765, 767; Smith v. Bourbon County, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73, 77; Moloney v. Cressler, 210 Fed. 104, 126 C. C. A. 618; Thayer et al. v. Life Ass’n of America, W. A. Ralfe, et al., 112 U. S. 717, 5 Sup. Ct. 355, 28 L. Ed. 864; Remington, Comp. Stat. § 1026; Id. § 8966, subd. 7; Hebb v. County Court, 48 W. Va. 279, 37 S. E. 676; West Va. Northern R. Co. v. U. S., 134 Fed." }, { "docid": "14674115", "title": "", "text": "parts of the record to the attention of the court, as bearing on the question of jurisdiction. This has been done, and an additional transcript of record filed, which contains the petition for removal from the district court of Sedgwick county, Kan., to the United States District Court, As our attention to the question of jurisdiction was challenged in the former appeal (298 F[ 299), it is natural that we again survey the record on this question; it being the duty of this court to deny jurisdiction as to itself and as to the court from which the record comes, if it is apparent from the whole record and the nature of the case that the jurisdictional amount is not really involved. A general allegation under such circumstances that-the amount in controversy exceeds the jurisdictional requirement is of no avail. Garvin v. Kogler (C. C. A.) 272 F. 442; Norton et al. v. Lamey (C. C. A.) 289 F. 395;. Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Vance v. W. A. Vandercook Co., 170 U. S. 648, 18 S. Ct. 674, 42 L. Ed. 1100; Lion Bonding Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Morris v. Gilmer, 129 U. S. 315, 9 S. Ct. 289, 32 L. Ed. 690. Jurisdiction in this cause depends upon “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000.” Judicial Code, § 24 (Comp. St. § 991). What is the matter in controversy here,. and does its sum or value exceed $3,000,. exclusive of interest and costs? The matter in dispute is the alleged right to collect from appellant for 8 months the $2 per month extra charge allowed to appellees by the Public Utilities Commission of the state-of Kansas for supplying natural gas to-its consumers in the city of Wichita and to-bring about payment by appellant by turming off the supply of gas being furnished to him. It is clear appellant has no right involved" }, { "docid": "5400137", "title": "", "text": "A. 1917E, 322; Kannellos v. Great Northern Ry. Co., 151 Minn. 157, 186 N. W. 389; Pierson v. Davis, Agent, 70 Mont. 106, 224 P. 235; Petition of Clinchfield Nav. Co., Inc. (D. C.) 26 F.(2d) 290. Similar limitations in federal statutes (other than the Federal Employers’ Liability Act) creating rights have been the subject of discussion in the courts. In A. J. Phillips Co. v. Grand Trunk Western Railway Co., 236 U. S. 662, 35 S. Ct. 444, 59 L. Ed. 774, the court considers the phase of the Hepburn Amendment to the Interstate Commerce Act, which provides that “all complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after,” and the court says (page 667 of 236 U. S., 35 S. Ct. 444, 446): “Under such a statute the lapse of time not only bars the remedy, but destroys the liability.” See, also, The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358; Davis v. Mills, 194 U. S. 451, 24 S. Ct. 692, 48 L. Ed. 1067; Central Vermont Railway Co. v. White, Administratrix of White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; Kansas City Southern Railway Co. v. Wolf et al., 261 U. S. 133, 43 S. Ct. 259, 67 L. Ed. 571; Richards, State Superintendent of Banks v. Carpenter et al. (C. C. A.) 261 F. 724; Wood & Seliek, Inc. v. Compagnie Generale Transatlantique (C. C. A.) 43 F.(2d) 941; Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, 2 Ann. Cas. 150. This time limit in section 6 of the Federal Employers’ Liability Act is a part of the right granted to maintain an action thereunder, and, as the time here had clearly expired before suit was commenced, no right existed in appellant to rely on said section 6 in bringing this action, and said section cannot be appealed to in an attempt to prevent" }, { "docid": "8055795", "title": "", "text": "the wife was not the real party in interest and could therefore not issue the summons, no valid service was made, and the court has not jurisdiction of the defendant. The validity of the service may be challenged in the federal court after removal thereto of the cause. Ostrander v. Deerfield Lbr. Co. (D. C.) 206 F. 540; Forrest v. U. P. Ry. Co. (C. C.) 47 F. 1. The Supreme Court, in General Inv. Co. v. Lake Shore Ry., 260 U. S. 261, at page 268, 43 S. Ct. 106, 110(67 L. Ed. 244), said: “ * * * It is well settled that a petition for removal, even if not containing such a reservation, does not amount to a general appearance, but only a special appearance, and that after the removal the party securing it has the same right to invoke the decision of the United States court on the validity of the prior service that he has to ask its judgment on the merits.” - - • • In Courtney v. Pradt, 196 U. S. 89, at page 92, 25 S. Ct. 208, 210 (49 L. Ed. 398), speaking of the United States court, the Supreme Court says: “* * * That court is entitled to pass on- all questions arising, including the question of jurisdiction over the subject-matter in the state courts, or the sufficiency of the service of mesne process to authorize the recovery of personal judgment.” In Remington v. Central Pac. R. R. Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. Ed. 959, the Supreme Court held that, if the United States court is satisfied that the state court, in passing upon jurisdiction, has made a mistake, it' has the power to reopen the matter and reconsider the question of jurisdiction. The same court, in Mechanical App. Co. v. Castleman, 215 U. S. 437, said at 443, 30 S. Ct. 125, 128 (54 L. Ed. 272): “Moreover, in cases which concern the jurisdiction of the federal courts, notwithstanding the so-called Conformity Act (Rev. Stats. § 914 [Comp. St. § 1537] )," }, { "docid": "23352032", "title": "", "text": "when grounds for a continuance are made manifest to the convening authority. If he grants the continuance, I doubt that complaint would be made. If, on the other hand, he denies it, a new application therefor may be made in open court. At that time- — in my understanding — the law officer is permitted to make an independent determination of the desirability of granting the application. Accordingly, under this procedure the accused is in no way deprived of his right to have the law officer rule finally on any request made by him for a continuance. In the case at bar the convening authority’s action completely destroyed that right. Ill Judge Latimer has emphasized that he knows of “no trial judge who is hot subject to some supervision and control by a superior court.” As he must also know, an appellate court, in the exercise of that supervision and control, does not as a usual thing review interlocutory rulings at the time of their rendition. See 28 USC §§ 1291,1292; Bankers Life & Casualty Co. v. Holland, 346 US 379, 98 L ed —, 74 S Ct 145; Roche v. Evaporated Milk Ass’n, 319 US 21, 30, 87 L ed 1185, 1193, 63 S Ct 938; Cobbledick v. United States, 309 US 323, 84 L ed 783, 60 S Ct 540; American Construction Co. v. Jacksonville, T. & K. R. Co. 148 US 372, 37 L ed 486, 13 S. Ct 758; Georgia Ry. & Power Co. v. Decatur, 262 US 432, 67 L ed 1065, 43 S Ct 613; 2 Am Jur, Appeal and Error §§ 21-27. So far as I can determine, action on an application for a continuance is generally viewed as interlocutory in character. Cf. Bedgisoff v. Cushman, 12 F2d 667 (CA9th Cir). Thus, -in the civilian scene the ruling on such a request could not in most instances be the subject of appellate consideration until the termination of the case. Thus too, the “superior court,” of which the dissenting judge speaks, would not at all be in the position of considering the question' of" }, { "docid": "13425506", "title": "", "text": "in United, States History, p. 9 et seq.), so much so that in 1798 the Eleventh Amendment to the Constitution of the United States was passed, providing that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” The federal courts have since then been chary of interfering with state agencies. Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868; State of Kansas v. Bradley (C. C.) 26 F. 289, 292. See Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 239, 29 S. Ct. 67, 53 L. Ed. 150. The care taken to prevent undue interference by tbe United States courts with the-action of state officials may be seen by the Act of Congress of March 4, 1913, 37 Stat. 1013, which is now section 266 of the Judicial Code (Comp. St. § 1243). This act provides that no interlocutory injunction against state officials shall be granted, except after a hearing before three judges, of whom one must be. either a Justice of the Supreme Court or a Circuit Judge. Rose, Federal Jurisdiction and Procedure, p. 470. See, also,. Act Feb. 13, 1925, c. 229, § 1 (Comp. St. Supp. 1925, § 1215), amending section 238 of the Judicial Code, among other sections. The statute also provides for a stay of the proceedings in the District Court, if application be made to the state court, and the state officials are by it enjoined from exercising their powers until the determination, of the matter by the state court. There seems no reason for extending the doctrine of the eases like Boston ,& Maine R. R. Co. v. Dutille to cover the present situation, and- many reasons why this should not be done. The plaintiff has on its own motion invoked the jurisdiction of the state court, which has full power .to decide the ease. Hone of the plaintiff’s rights will" }, { "docid": "13907858", "title": "", "text": "F. 47), and all conclusions in the complaint of such relations, not supported by fact, can serve no purpose (Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; see, also, Connolly et ux. v. C., M. St. P. R. R. Co., supra, and cases cited). The plaintiff, having elected to pursue his remedy under the Jones Act against the stevedoring company, may not join in that action defendants seeking liability under another statute or law. The cause of action against the local and foreign defendants arises from two distinct relations, and provides two distinct remedies — one, statutory; the other, common-law. Liability under federal statute and a common-law liability are distinct, and a cause of action under both may not be united. See Jackson v. C., R. I. & P. Ry. Co. (D. C.) 178 F. 432; Union Pac. R. R. Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983; Stark v. U. S. (D. C.) 14 F.(2d) 616; Helms v. Nor. Pac. Ry. Co. (C. C.) 120 F. 389; Fergason v. C., M. & St. P. R. Co. (C. C.) 63 F. 177; Beuttel v. C. M. & St. P. R. Co. (C. C.) 26 F. 50; Kelly v. Robinson (D. C.) 262 F. 695. The defenses to the statutory liability and the common-law liability may be different. The controversy is clearly separable, and the alien defendants may not be impleaded in an action under the Jones Act, since the relationship of employer and seaman does not exist. The Reliance (D. C.) 21 F.(2d) 872, 1927 A. M. C. 1339. See, also, Reynolds v. Addison Miller Co. et al., 143 Wash. 271, 255 P. 110. Motion to remand denied." }, { "docid": "17519855", "title": "", "text": "Nebraska, application by plaintiff to dismiss his action without prejudice, after final submission of a defendant’s motion for a directed verdict, comes too late and must be denied.” The first question presented is whether the order challenged is appealable. The plaintiff below took a nonsuit, which has been defined as “any judgment of discontinuance or dismissal whereby the merits are left untouched.” Mason v. Kansas City Belt Railroad Company, 226 Mo. 212, 125 S. W. 1128, 1131, 26 L. R. A. (N. S.) 914. Such a judgment has been uniformly held to be so far final as to be appealable. In Connecticut Fire Ins. Co. v. Manning et al., 177 F. 893, this court- held that “a judgment of nonsuit, though not res judicata of the merits of the controversy between the parties, is nevertheless a final judgment, reviewable on writ of error.” As Judge Munger; speaking for the court, said the fact “that the plaintiffs are not thereby estopped from bringing a new action founded on the same subject-matter, does not prevent the judgment of nonsuit being a final judgment of the Circuit Court with respect to the then pending ease.” See, also, Chicago, Milwaukee & St. Paul R. Co. v. Metalstaff (C. C. A. 8) 101 F. 769; Massachusetts Fire & Marine Ins. Co. v. Schmick (C. C. A. 8) 58 F.(2d) 130; Southern Pac. Co. v. Kelley (C. C. A. 7) 187 F. 937, 938, and Cybur Lumber Co. v. Erkhart (C. C. A. 5) 247 F. 284. We turn next to the question raised by the assignments of error. It may be accepted that the District Court for the District of Nebraska is governed by the statute existing, and the practice prevailing in that state, in granting or denying the application of a plaintiff to dismiss his action without prejudice. 28 USCA § 724; Chicago, M. & St. P. R. Co. v. Metalstaff (C. C. A. 8) 101 F. 769; Rhode v. Duff et al. (C. C. A. 8) 208 F. 115, 118; Spies v. Union Pac. R. Co. (C. C. A. 8) 250 F. 434;" }, { "docid": "4736019", "title": "", "text": "chapter 79 of the acts of the Sixty-Fifth Congress, 40 Stat. 345, 352, authorizing the taking of proving grounds for the War Department, and proclamation of the President issued under said aet whereby lands in Harford county, Md., were taken for what is now known as Edgewood Arsenal, 40 Stat. 1731. The necessity and propriety of taking private property for public use, and the extent to which it shall be taken and the procedure to be followed therein, are legislative questions, subject only to the constitutional limitation that just compensation must be made. Shoemaker v. United States, 147 U. S. 282, 298, 13 S. Ct. 361, 37 L. Ed. 170; Secombe v. Milwaukee & St. P. R. Co., 23 Wall. 108, 23 L. Ed. 67; Lewis on Eminent Domain (3d Ed.) § 255. While the state of war in this case doubtless determined the legislative policy to take the laud more summarily than could have been done by following the ordinary general condemnation procedure, it is clear that the war did not suspend the operative force of the Fifth Amendment as to the determination of just compensation [United States v. L. Cohen Grocery Co., 255 U. S. 81, 88, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; United States v. New River Collieries Co., 262 U. S. 341, 343, 43 S. Ct. 565, 67 L. Ed. 1014; United States v. McFarland, 15 F.(2d) 823, 826 (C. C. A. 4)], whieh necessarily remained a judicial question. Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 S. Ct. 622, 37 L. Ed. 463; Bauman v. Ross, 167 U. S. 548, 583, 17 S. Ct. 966, 42 L. Ed. 270; Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 304, 43 S. Ct. 354, 67 L. Ed..664; United States v. New River Collieries Co., 262 U. S. 343, 43 S. Ct. 565, 67 L. Ed. 1014. The act under consideration met the constitutional requirement by providing ultimately for the judicial ascertainment of just compensation. It is insisted by defendants’ counsel that the judicial" }, { "docid": "3022920", "title": "", "text": "or affect it in any material thing.’ ” In United States v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 19, 59 L. Ed. 129, the court said: “In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term. * * * There are certain exceptions. In the case of courts of common law, — and we are not here concerned with the special grounds upon which courts of equity afford relief,— the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors, and, in civil cases, to rectify such mistakes of fact as were reviewable on writs of error coram nobis, or coram vobis, for which the proceeding by motion is the modem substitute.” In Re Metropolitan Trust Co., 218 U. S. 312, 320, 31 S. Ct. 18, 20, 54 L. Ed. 1051, the court said: “Nor could the court exercise the general power which it possesses to modify or set aside its orders or decrees prior to the expiration of the term at which the final decree is entered; for in this case that term had ended before the motion was made.” See, also, Wellman v. Bethea (D. C.) 213 P. 367; Mellon v. St. Louis Union Trust Co. et al. (C. C. A.) 240 P. 359; Buckeye Coal & Ry. Co. et al. v. Hocking Valley Ry. Co. et al., 269 U. S. 42, 46 S. Ct. 61, 70 L. Ed. 155. There are exceptions to the rule that a court cannot vacate a judgment after the term expires, etc., one of which is that where upon its face it is apparent that the judgment is a nullity the court may vacate it at any time. The oft-quoted case of People v. Greene, 74 Cal. 400, 16 P. 197, 199, 5 Am, St. Rep. 448, refers to such judgment as “a dead limb upon" }, { "docid": "13907857", "title": "", "text": "NETERER, District Judge (after stating the facts as above). [1,2] No issue is made to the direct statement in the petition for removal, that the relation of employer and employee did not exist between the alien defendants and the injured plaintiff, and the allegations in the complaint that the alien defendants are the owners of the vessel and employed the local defendant to unload cargo of the vessel, with the additional statement that the plaintiff was employed by the- defendants — the local defendant’s business being that of a stevedore to load and unload cargo — does not change the relation to employer and employee. Employment of local defendant by the alien defendants negatives plaintiffs’ employment by alien defendants, in the absence of facts establishing it. In the absence of denial or further statement of fact, the petition in that respect must be taken as admitted (Connolly et ux. v. C., M. St. P. R. R. [D. C,] 3 F.[2d] 818; see, also, City of Winfield v. Wichita Natural Gas Co. [C. C. A.] 267 F. 47), and all conclusions in the complaint of such relations, not supported by fact, can serve no purpose (Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; see, also, Connolly et ux. v. C., M. St. P. R. R. Co., supra, and cases cited). The plaintiff, having elected to pursue his remedy under the Jones Act against the stevedoring company, may not join in that action defendants seeking liability under another statute or law. The cause of action against the local and foreign defendants arises from two distinct relations, and provides two distinct remedies — one, statutory; the other, common-law. Liability under federal statute and a common-law liability are distinct, and a cause of action under both may not be united. See Jackson v. C., R. I. & P. Ry. Co. (D. C.) 178 F. 432; Union Pac. R. R. Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983; Stark v. U. S. (D. C.) 14" }, { "docid": "5983131", "title": "", "text": "mandatory, the granting of separate trials thereunder is purely within the discretion of the court, and this discretion will not be reviewed unless it clearly appears it has been abused.” See, also, Smith v. Baer, 166 Mo. 392, 66 S. W. 166; Stone v. Perkins, 217 Mo. 586, 117 S. W. 717. Being a matter of procedure under the Missouri statute, and no federal question being involved, the construction of the statute by the appellate courts of Missouri is controlling. Pacific American Fisheries v. Hoof (C. C. A.) 291 Fed. 306; Richmond v. Smith, 15 Wall. 429, 21 L. Ed. 200; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 33 Sup. Ct. 967, 57 L. Ed. 1410; Colorado Power Co. v. Halderman (D. C.) 295 Fed. 178; Georgia Ry. & Power Co. v. Decatur, 262 U. S. 432, 43 Sup. Ct. 613, 67 L. Ed. 1065. It is the evident holding of the Missouri courts that under the section of the statute hereinbefore referred to the granting of a separate trial, where more than one issue is presented in a case, is a matter resting in the discretion of the trial court, and in the absence of abuse thereof there is no review. In this case there could be no abuse of discretion in the court’s action refusing to separate the issues for trial, unless sueh action of necessity resulted in getting before the jury improper matter creating an erroneous impression, that could not be eradicated by the instructions of the court or the withdrawal of the same from the consideration of the jury. The objection of plaintiffs in error is not so much to the technical ruling refusing a separate trial as to the claimed result that sueh action created the possibility of getting before the jury alleged prejudicial matter, and that sueh possibility was realized. It is earnestly urged that the jury was saturated with the idea that the controversy in the ease was between the railway company and the insurance companies. We think such claim is not sustained by the record. The answer, as before" }, { "docid": "6136092", "title": "", "text": "“Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.” Sinking Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496. In Bratton v. Chandler, 260 U. S. 110, at page 114, 43 Sup. Ct. 43, at page 44 (67 L. Ed. 157), it is said: “ ‘A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’ ” See, also, Arkansas Gas Co. v. Railroad Comm., 261 U. S. 379, 43 Sup. Ct. 387, 67 L. Ed. 705, and 12 Corpus Juris, 791-794. Section 67 of the Public Utility Act of California (Ex. Sess. 1911, p. 18) is very similar to the section of the Colorado statute attacked here in respect to reviews by the Supreme Court of the state. That statute and these particular questions were discussed in Napa Valley Co. v. R. R. Comm., 251 U. S. 366, at pages 370, 371, 40 Sup. Ct. 174, 64 L. Ed. 310, but the case was decided on another point. The question is one involving the construction of a state statute, and the decision of the highest state court is binding on this and other federal courts. Georgia Ry. & Power Co. v. Decatur (June 4, 1923) 262 U. S. 432, 43 Sup. Ct. 613, 67 L. Ed. 1065, and cases cited. It would therefore seem that the rule in the Ben Avon Case has not been violated, unless decisions of the highest state court construing the act do so. The plaintiff contends that this has been done in A., T. & S. F. Co. v. Public Utilities Commission, 68 Colo. 92, 188 Pac. 747. That case involved only the reasonableness of certain switching charges, and the contention of the railroads was.that there was no evidence to support the commission’s findings. The court held that there was evidence to support the findings*of the commission, and says in the syllabus: “The Supreme Court is authorized to set aside or" }, { "docid": "5983130", "title": "", "text": "of Missouri. Section 1401, Revised Statutes of Missouri 1919, provides as follows: “Where there are several causes of action united in a petition, or where there are several issues, and the court shall be of the opinion that all or any of them should be tried separately by the court or jury, it may, on the application of either party, direct separate trials.” This statute has been construed by the Missouri courts as placing a discretion in the trial court as to whether the issues in a case shall be tried separately. In Sexton v. Anderson Electric Car Co. (Mo. App.) 234 S. W. 358, 359, the court said: “In the ease at bar, there is no claim that there is more than one cause of action, but two issues clearly were raised by the pleadings: First, as to whether Sexton is the proper party plaintiff; and, second, the controversy on the merits of the ease. The clear intent of the statute is to prevent confusion in deciding the several issues. The statute is not mandatory, the granting of separate trials thereunder is purely within the discretion of the court, and this discretion will not be reviewed unless it clearly appears it has been abused.” See, also, Smith v. Baer, 166 Mo. 392, 66 S. W. 166; Stone v. Perkins, 217 Mo. 586, 117 S. W. 717. Being a matter of procedure under the Missouri statute, and no federal question being involved, the construction of the statute by the appellate courts of Missouri is controlling. Pacific American Fisheries v. Hoof (C. C. A.) 291 Fed. 306; Richmond v. Smith, 15 Wall. 429, 21 L. Ed. 200; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 33 Sup. Ct. 967, 57 L. Ed. 1410; Colorado Power Co. v. Halderman (D. C.) 295 Fed. 178; Georgia Ry. & Power Co. v. Decatur, 262 U. S. 432, 43 Sup. Ct. 613, 67 L. Ed. 1065. It is the evident holding of the Missouri courts that under the section of the statute hereinbefore referred to the granting of a separate trial, where more" }, { "docid": "7431387", "title": "", "text": "for the loss resulting therefrom, and such right shall be assigned to this company by the insured, on receiving such payment.” Plaintiff relics upon the following authorities: Fireman’s Fund Ins. Co. v. O. R. & N., 58 Wash. 332, 76 Pac. 1075; Pratt v. Radford, 52 Wis. 114, 8 N. W. 606; Wunderlich v. C. N. W., 93 Wis. 132, 66 N. W. 1144; Gaugler v. C., M., P. S. R. R. Co. (U. S. D. C., Mont.) 197 Fed. 79; Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; Dickerson v. Spokane, 26 Wash. 292, 66 Pac. 381; McElroy v. Williams, 14 Wash. 627, 45 Pac. 306; State ex rel. Adjustment Co. v. Superior Court, 67 Wash. 355, 121 Pac. 847; Continental Ins. Co. v. Loud, 93 Mich. 139, 53 N. W. 394, 32 Am. St. Rep. 494; Fairbanks et al. v. Ry. Co., 115 Cal. 579, 47 Pac. 450; United Coal Co. v. Canon City Coal Co., 24 Colo. 116, 48 Pac. 1045; State Ins. Co. v. Oregon Ry. & Nav. Co., 20 Or. 563, 26 Pac. 838; Fireman’s Ins. Co. v. Oregon Ry. & Nav. Co., 45 On 53, 76 Pac. 1075, 67 L. R. A. 161, 2 Ann. Cas. 360; First Presbyterian Society v. Goodrich Trans. Co. (C. C) 7 Fed. 257; Glenn v Marbury, 145 U. S. 499, 12 Sup. Ct. 914, 36 L. Ed. 790; Kansas Midland Ry. Co. v. Brehm, 54 Kan. 751, 39 Pac. 690; Liverpool & G. W. S. S. Co. v. Phenix Ins. Co.. 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788; City of New Orleans v. Whitney, 138 U. S. 595, 11 Sup. Ct. 428. 34 L. Fd. 1106; Downs v. Pioneer Mutual Ins. Co., 41 Wash. 372, 83 Pac. 423; Thompson v. Cent. Ohio R. R. Co., 6 Wall. 134, 18 L. Ed. 765; Delaware Co. v. Diebold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct. 399, 33 L. Ed." }, { "docid": "23573959", "title": "", "text": "not brought under the first option given by the statute, but the third. The jurisdiction of the Utah court rests on the fact that the defendant was doing business in the state when the suit was brought; the challenge to the venue is because it did more business in the Northern Division than the Central. The point is without merit. There was a motion to qudsh the, summons, but neither the summons nor the return is in the record. The federal statutes being silent on the subject, the servicq of process is governed by the state statutes under the Conformity Act (28 USCA § 724). Amy v. Watertown, 130 U. S. 301, 9 S. Ct. 530, 32 L. Ed. 946; Penna. Fire Ins. Co. v. Gold Issue Mining Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610; Atchison, T. & S. F. Ry. Co. v. Drayton (C. C. A. 8) 292 F. 15; Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 S. Ct. 526, 42 L. Ed. 964; McCord Lbr. Co. v. Doyle (C. C. A. 8) 97 F. 22, certiorari denied, 176 U. S. 682, 20 S. Ct. 1025, 44 L. Ed. 638. The statute authorizes service upon any one of a number of persons, section 6548, Comp. Laws Utah 1917, and there is no showing of lack of proper service. 2. The trial court denied a motion to stay the proceedings, and this is assigned as error. It appears that plaintiff first filed an action in the state court for this injury, and recovered a verdict of $12,000. Plaintiff moved for a new trial, and it was granted. Thereupon plaintiff dismissed his action and sued in the federal court. Defendant then appealed to the Utah Supreme Court from the ruling of the lower court granting a new trial and permitting a dismissal of the action. That appeal was pending in the Supreme Court of Utah when the ease here was set for trial; as far as we are advised it is still pending. Since the judgment here must be re versed on" }, { "docid": "19327724", "title": "", "text": "allegiance to two sovereigns, our country and our state. In turn we are entitled to that measure of protection which each under its Constitution and laws may afford us. Our national Constitution prohibits any state from granting immunity from punishment and regulation by law to its citizens which it denies to citizens of other states. The mere reading of the act in question makes entirely clear the contention of complainants and interveners that it does impose burdens upon and denies privileges to citizens of other states which are not imposed upon and which are granted to citizens of Iowa. That such favoritism of the law of a state to its citizen subjects as this act grants cannot be successfully defended, no matter how laudable the purpose sought to be accomplished thereby may be thought to be, would appear settled by numerous authoritative decisions. St. L. & San Francisco Railway v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed. 567; Covington & E. Turnpike Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560; Cotting v. Kansas City Stockyards Co., etc., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92; Chicago, M. & St. P. Ry. Co. v. Westby, 178 Fed. 619, 102 C. C. A. 65, 47 L. R. A. (N. S.) 97; Butler Bros. Shoe Co. v. United States Rubber Co., supra. The view taken, as heretofore expressed, renders any lengthy discussion of this important question, or any discussion whatever of other objections made by complainants and interveners to the validity of the act, on this application for a mere temporary order, unnecessary. Such matters can be thoroughly considered and ruled on final decree. Meanwhile the temporary order applied for must be granted, on such terms as to form and bond required to be given, and on such orders as to an appeal, if one shall be prayed, as the presiding judge of this court may be advised are proper. It is so ordered." } ]

[ { "docid": "22748304", "title": "", "text": "of permitting discretionary weighing of mitigating factors after Furman, the sponsors of the Ohio House bill were not in a position to mount a strong opposition to the Senate’s amendments, see Lehman & Norris, supra, at 18-22, and the statute under which Lockett was sentenced was enacted. See, e. g., Woodson, supra, at 300 (opinion of Stewart, Powell, and SteveNS, JJ.); Rockwell v. Superior Court, 18 Cal. 3d 420, 446-448, 556 P. 2d 1101, 1116-1118 (1976) (Clark, J., concurring) (account of how California and other States enacted unconstitutional mandatory death penalties in response to Furman); State v. Spence, 367 A. 2d 983, 985-986 (Del. 1976) (Delaware Legislature and court interpreted Furman as requiring elimination of all sentencing discretion resulting in an unconstitutional statute); Liebman & Shepard, Guiding Capital Sentencing Discretion Beyond the “Boiler Plate”: Mental Disorder as a Mitigating Factor, 66 Geo. L. J. 757, 765 n. 43 (1978). See Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv. L. Rev. 1690, 1690-1710 (1974). Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, supra; and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976). We express no opinion as to whether the need to deter certain kinds of homicide would justify a mandatory death sentence as, for example, when a prisoner — or escapee — under a life sentence is found guilty of murder. See Roberts (Harry) v. Louisiana, 431 U. S. 633, 637 n. 5 (1977). Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense. Sentencing in noncapital cases presents no comparable problems. We emphasize that in dealing with standards for imposition of the death sentence we intimate no view regarding the authority of a State or of the Congress to fix mandatory, minimum sentences for noncapital crimes. The statute provided that, in sentencing, the jury should consider “any mitigating circumstances or aggravating circumstances otherwise" } ]

[ { "docid": "16985188", "title": "", "text": "knowingly creating a great risk of death to many persons; (4) murder committed while Mills was engaged in the commission of or an attempt to commit or flight after committing the robberies; (5) pecuniary gain; (6) heinous, atrocious or cruel. The trial court additionally found that the following statutory mitigating factors were not present: (1) no significant history of prior criminal activity; (2) murder committed while Mills was under the influence of extreme mental or emotional disturbance; (3) the victims were participants or consented to Mills’s acts or conduct; (4) Mills was an accomplice in the murder that another committed, or Mills's participation in the murder was minor; (5) Mills acted under extreme duress or under the substantial domination of another; (6) Mills’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; (7) Mills's age at the time of the crime. See Fla. Stat. § 921.141 (1979). The trial court also sentenced Mills to ten years of imprisonment on Count II (burglary) and five years of imprisonment on Count III (aggravated battery), with tire sentences running concurrently. . Specifically, the Florida Supreme Court held that the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ. There are three valid statutory aggravating circumstances, and the trial judge has found that there are no valid mitigating circumstances. The purported mitigating circumstances claimed by Mills, but not found by the trial judge, are not sufficient to outweigh the aggravating circumstances nor do they establish a reasonable basis for the jury's recommendation. Mills, 476 So.2d at 179 (construing Tedder, 322 So.2d at 910). . Mills included seven claims in his petition for writ of habeas corpus: (1) the Florida Supreme Court decided wrongly on appeal the issue of Mills not being allowed to impeach his codefend-ant; (2) the trial judge’s override of the jury’s recommendation was improper; (3) appellate counsel was ineffective because Mills should have been resentenced pursuant to Elledge v. State, 346 So.2d 998 (Fla.1977); (4) the trial court erred" }, { "docid": "22614874", "title": "", "text": "of the record to enable that court to complete its reviewing function. That procedure, however, could not fully correct the error. For it is possible that full disclosure, followed by explanation or argument by defense counsel, would have caused the trial judge to accept the jury’s advisory verdict. Accordingly, the death sentence is vacated, and the case is remanded to the Florida Supreme Court with directions to order further proceedings at the trial court level not inconsistent with this opinion. Vacated and remanded. The Chief Justice concurs in the judgment. Fla. Stat. Ann. § 921.141 (Supp. 1976). This Court upheld the constitutionality of the statute in Proffitt v. Florida, 428 U. S. 242. Fla.Stat. Ann. § 921.141 (5) (h) (Supp. 1976). The statute provides, in part: “(6) Mitigating circumstances.—Mitigating circumstances shall be the following: “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla. Stat. Ann. §§921.141 (6) (b), (f) (Supp. 1976). Florida Rules Crim. Proc. 3.710-3.713 authorize the presentence investigation. The Rules apply to all cases in which the trial court has discretion in sentencing, and make no reference to the special capital-sentencing procedure at issue here. In an appendix to its brief in this Court, the State has printed a copy of the confidential portion of the presentence report. Petitioner contests its authenticity. He also argues, alternatively, that we should not review its contents because it was not made a part of the certified record in the state courts or in this Court; that consideration of the contents of the report in the first instance in this Court flouts the procedural regularity mandated for capital sentencing by Furman v. Georgia, 408 U. S. 238, and Proffitt v. Florida; or that, not having had an opportunity to present evidence to rebut the confidential portion of the report, it would be unfair and improper to require him to address its contents in this Court." }, { "docid": "1480017", "title": "", "text": "be the following: (a) The defendant has no significant history of prior criminal activity. (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant’s conduct or consented to the act. (d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor. (e) The defendant acted under extreme duress or under the substantial domination of another person. (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. (g) The age of the defendant at the time of the crime. . The Florida statute was amended by the legislature in 1979. This amendment removed the language limiting the mitigating circumstances to the list enumerated in the statute. See Fla. Stat. § 921.141(2)(b), (3)(b) (1985). . The unanimous Supreme Court stated: We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of [Skipper and Lockett ]. Hitchcock, — U.S. at —, 107 S.Ct. at 1824 (citations omitted). . There may be some question in this circuit whether both the jury and the trial judge must believe they are limited to considering statutory mitigating factors before a Hitchcock violation has occurred. Compare Magill v. Dugger, 824 F.2d 879, 893 (11th Cir.1987) (\"whether or not the trial court believed it could consider non-statutory mitigating circumstances, [petitioner’s] sentence must be vacated because the jury was so limited”) (emphasis in original) with Elledge v. Dugger, 823 F.2d 1439, 1448-49 (11th Cir.1987) (Hitchcock error does not require reversal when the state trial judge indicates he did not feel he was limited to statutory mitigating factors). Because in this case both the trial judge and the jury believed that they were limited to considering statutory mitigating factors, we do not need to resolve this issue. The Florida" }, { "docid": "23131531", "title": "", "text": "by the judge. The petitioner is entitled to a full resentencing procedure in this case because the consideration of and reliance on invalid aggravating factors in the face of substantial evidence of mitigating factors resulted in a situation in which the presence of the invalid factors could have tipped the scales against the petitioner. By adding three impermissible “weights” to the weighing process, the sentencing discretion of the jury and the judge was not properly channeled to eliminate the risk of arbitrary, capricious, or disproportionate results. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In addition, the petitioner’s right to have the jury and judge fully consider all mitigating evidence in his behalf, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was substantially diminished by the presence of “overloaded” aggravating factors. Not only was the sentencing process significantly affected by the presence of invalid factors, but the sentence itself was not “rationally reviewable” by the Florida Supreme Court. Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976). Moreover, after an error of this kind has been made, it is completely impermissible for the Florida Supreme Court, and now this Court, to usurp the role of sentencer by guessing as to how the jury and the judge would have decided the case in the absence of the invalid aggravating factors. The Florida Supreme Court’s original rationale for upholding a death sentence which rests partially on invalid aggravating factors was that, in the presence of at least one valid aggravating factor and in the absence of any mitigating factors, “death is presumed to be the appropriate penalty.” Ford v. State, 374 So.2d 496, 503 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); Elledge v. State, 346 So.2d 998 (Fla.1977); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The rationale was apparently modified to some extent in" }, { "docid": "23131461", "title": "", "text": "factors. The state court’s remark that where some aggravating and no mitigating factors are present “death is presumed appropriate” could be understood to mean that the initial sentencer must impose the death penalty if it finds any aggravating and no mitigating factors. An alternative interpretation is that the appellate court is engaging in a presumption, for review purposes, that when the initial sentencer has found some aggravating factors and no mitigating ones it would have imposed the death sentence even if it had not considered the erroneous aggravating factors. See Zant v. Stephens, 456 U.S. 410, 415, 102 S.Ct. 1856, 1858, 72 L.Ed.2d 222, 227 (1982). I would be hesitant to attribute to the Florida court the first interpretation of the statute, which would make the death penalty mandatory in all cases in which some aggravating and no mitigating factors are found. The statutory language does not support this interpretation. It requires both the advisory jury and the sentencing judge initially to determine “[w]hether sufficient aggravating circumstances exist as enumerated in subsection (5) [of the statute].” Fla. Stat.Ann. § 921.141(2), (3) (West Supp. 1982). Only after finding that there are “sufficient” aggravating factors are the jury and judge instructed to address mitigating factors. Id. The statutory language thus suggests that death is appropriate only where the sentencers make an individualized judgment that the aggravating factors they have identified are sufficiently grave to justify that punishment. Another reason I would not attribute this interpretation of the statute to the Florida Court is that the statute as so interpreted would pose significant constitutional questions. The Supreme Court has held that capital sentencing schemes may not, consistently with eighth amendment principles, eliminate all sentencer discretion by making the death sentence mandatory for certain statutorily defined categories of offenses. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Moreover, the Court has recently reaffirmed the importance of individualized sentencing by holding that the scope of mitigating evidence a defendant may proffer on his own behalf" }, { "docid": "3878655", "title": "", "text": "calculated and premeditated manner without any pretense of moral or legal justification. Fla. Stat. § 921.141(5)(i). The mitigators in turn included these considerations: (1) Kokal’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, Fla. Stat. § 921.141(6)(f); (2) Kokal’s age at the time of the murder, Fla. Stat. § 921.141(6)(g); and (3) his character. Fla. Stat. § 921.141(6)(h). After deliberating, the jury unanimously recommended death. It also found that “the defendant, Gregory Kokal did actually kill Jeffrey Russell.” On November 14, 1984, the state trial court conducted a motion and sentencing hearing of its own, pursuant to Fla. Stat. § 921.141(3), which requires trial judges to independently review the evidence and make detailed written findings regarding aggravating and mitigating circumstances before imposing the death penalty. In this hearing, the trial court weighed the fact that the jury had found Kokal actually killed the victim, and reviewed all of the potential statutory and non-statutory mitigating circumstances. Finding no mitigators and all four aggravating circumstances, the trial court sentenced Kokal to death. The trial court also issued a written judgment and sentence, explaining its decision at some length. The court began by outlining the essential facts of the murder, including how Kokal “savagely” beat the victim, shot Russell in the head after the victim “begged his life be spared,” and bragged to his friend that he “wasted a sailor for a dollar.” The order further provided that the trial court had “closely examined, weighed and considered” the aggravating and mitigating circumstances. In so doing, the trial court expressly addressed the aggravating circumstances argued by the state, as well as all of the potential mitigating circumstances available in the statute. The trial court then reached the following pertinent conclusions: • In rejecting the “extreme mental and emotional disturbance” mitigating circumstance, Fla. Stat. § 921.141(6)(b), the judge found that “the defendant was at all material times in complete control of his mental and emotional faculties acting deliberately and with pre-meditation.” • In rejecting the “substantially impaired” capacity mitigating circumstance, Fla. Stat. § 921.141(6)(f), the" }, { "docid": "16750064", "title": "", "text": "was committed while the defendant was under the influence of extreme mental or emotional disturbance, that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and he considered the age or mentality of the defendant at the time of the crime as a mitigating factor. See S.C.Code § 16 — 3— 20(C)(b)(l), (2), (6), (7). Finding that at least one of the statutory aggravating circumstances was present, that the death sentence was warranted under the evidence of the case, and that the death penalty was not the result of prejudice, passion, or any other arbitrary factor, all required findings under S.C.Code § 16-3-20(C), the judge entered sentences of death for Shaw on the murder charges. The South Carolina Supreme Court affirmed on appeal; and, in its first mandatory review of a death sentence under the state’s current death penalty statutes, see S.C.Code § 16-3-25, found that the sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor, that the evidence supported the judge’s finding of a statutory aggravating circumstance, and that there were no similar cases against which the proportionality of Shaw’s sentence could be compared. State v. Shaw, 273 S.C. at 209-11, 255 S.E.2d at 806-07. The United States Supreme Court denied certiorari on November 13,1979. Shaw v. South Carolina, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979). The South Carolina Supreme Court, on November 21, 1979, directed that the sentence of death be executed. The execution was scheduled for December 14, 1979. Shaw then commenced federal and state post-conviction proceedings, which we summarize here. Shaw filed in the district court a petition seeking a writ of habeas corpus and a motion for stay of execution on December 11, 1979, and a supplemental petition on December 12. The court held a hearing on December 12, and that day entered an order denying a stay. On December 13, 1979, a judge of this court granted Shaw a stay of execution. Shaw v. Martin, 613 F.2d 487 (4th" }, { "docid": "369962", "title": "", "text": "the Court squarely held that a sentencer could not consider non-statutory aggravating circumstances. Proffitt, however, did not suggest that a limitation on mitigating circumstances might be unconstitutional. Indeed, in Proffitt, the Court stated that the decision whether to impose the death penalty “turned upon whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist.” 428 U.S. at 246, 96 S.Ct. at 2963. Later, the Court stated that the “trial judge is ... directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed.” Id. at 250, 96 S.Ct. at 2965. Also, the Court described the trial court’s function as that of weighing “eight aggravating factors against seven mitigating factors.” Id. at 251, 96 S.Ct. at 2966. In short, Proffitt contains no direct statement or inference that, as a matter of federal constitutional law, the statutory list of mitigating circumstances should be considered nonexclusive. Proffitt’s companion cases shed no light on this issue, see, e.g., Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and there is a dearth of federal cases decided prior to or during Hargrave’s trial and appeal which address Florida’s post-Furman capital statute. It is thus fair to state that, at the time of Hargrave’s trial and appeal, there were no federal decisions which should have alerted Hargrave’s attorney to the possibility of a challenge based on exclusion of non-statutory mitigating circumstances. Nor should Hargrave’s attorney have been alerted to the possibility of a Lockett claim by decisions from the Florida courts. In State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), the Florida Supreme Court did not explicitly state that the statutory list was exclusive but it treated the statutory mitigating circumstances as if they were the only factors which could be considered. After Dixon, the Florida courts continued to treat the statutory list of mitigating factors as exclusive without explicitly so holding. See, e.g., Alford v. State, 307 So.2d 433, 444 (Fla.1975), cert. denied, 428 U.S. 912, 96" }, { "docid": "23131532", "title": "", "text": "reviewable” by the Florida Supreme Court. Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976). Moreover, after an error of this kind has been made, it is completely impermissible for the Florida Supreme Court, and now this Court, to usurp the role of sentencer by guessing as to how the jury and the judge would have decided the case in the absence of the invalid aggravating factors. The Florida Supreme Court’s original rationale for upholding a death sentence which rests partially on invalid aggravating factors was that, in the presence of at least one valid aggravating factor and in the absence of any mitigating factors, “death is presumed to be the appropriate penalty.” Ford v. State, 374 So.2d 496, 503 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); Elledge v. State, 346 So.2d 998 (Fla.1977); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The rationale was apparently modified to some extent in Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), which held that the presence; of a mitigating factor, characterized by the trial judge as of “ ‘some minor significance,’ ” was not sufficient to require resentencing in the face of the invalidity of an aggravating factor, when sufficient aggravating factors remained so that the court could know that the weighing process had not been compromised by the consideration of the invalid aggravating factors. Id. at 696. The danger of the Brown approach becomes evident in this case, however, in that the Florida Supreme Court has essentially taken over the role of sentencer. At the sentencing hearing the petitioner not only presented the statutory mitigating factor of his age (20), but also presented substantial evidence of prior good character and loyal family commitment. The petitioner argues that he had only recently become involved in crime as a result of losing his last job, and a recent involvement with drugs. Instead of remanding the case so that" }, { "docid": "23614276", "title": "", "text": "circumstances of his offense,’ ” the Court concluded that the statute, as applied, did not violate the Eighth Amendment. 110 S.Ct. at 1083-84. Moreover, the Court concluded that the trial court’s examples of mitigating circumstances did not preclude the jury’s considering any other mitigating factors. Id. at 1084. Blystone is dispositive on Zettlemoyer’s statutory constitutional issue. The trial court here instructed the jury on mitigating circumstances as follows: There are in the law — well, there’s an unlimited number. They list eight. They list seven and they say, any other evidence of mitigation concerning the character. Four of them may be applicable to this case, the others are not. They are one, that the defendant has no significant history of prior criminal convictions; two, he was under the influence of extreme mental or emotional distress; the third one, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; four, the age of the defendant at the time of the crime and then this eighth one; any other evidence of mitigation, which would be the fifth one to consider, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. All of the evidence from both sides that you have heard earlier, of course, during the trial in chief, all of that which has any bearing in your judgment upon aggravating or mitigating circumstances as I have mentioned them is important or proper for you to consider. App. at 203-04. The court, therefore, instructed the jury that several mitigating circumstances might apply to Zettlemoyer for this particular crime. The trial court instructed the jury to consider Zettlemoyer’s age, mental and emotional status at the time of the crime, and absence of a criminal record. These factors distinguished him from other defendants and provided the individualized consideration required by Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (individualized sentencing required by fundamental respect for humanity underlying Eighth Amendment). Additionally, because" }, { "docid": "369963", "title": "", "text": "2978, 49 L.Ed.2d 944 (1976), and there is a dearth of federal cases decided prior to or during Hargrave’s trial and appeal which address Florida’s post-Furman capital statute. It is thus fair to state that, at the time of Hargrave’s trial and appeal, there were no federal decisions which should have alerted Hargrave’s attorney to the possibility of a challenge based on exclusion of non-statutory mitigating circumstances. Nor should Hargrave’s attorney have been alerted to the possibility of a Lockett claim by decisions from the Florida courts. In State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), the Florida Supreme Court did not explicitly state that the statutory list was exclusive but it treated the statutory mitigating circumstances as if they were the only factors which could be considered. After Dixon, the Florida courts continued to treat the statutory list of mitigating factors as exclusive without explicitly so holding. See, e.g., Alford v. State, 307 So.2d 433, 444 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Songer v. State, 322 So.2d 481, 484 (Fla.1975), vacated on other grounds, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977). Finally, in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977), decided during the pendency of Hargrave’s appeal, the Supreme Court of Florida seemed to make explicit the exclusivity of the statutory mitigating factors suggested by Dixon, Alford and Songer. The Supreme Court of Florida stated that the only factors relevant to sentencing under the Florida statute were the statutory aggravating and mitigating circumstances: The sole issue in a sentencing hearing under Section 921.141, Florida Statutes (1975), is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have no place in that proceeding any more than purely speculative matters calculated to influence the sentence through emotional appeal. Such evidence threatens the proceeding with the undisciplined discretion condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)." }, { "docid": "23032650", "title": "", "text": "at the sentencing phase, counsel should have been alerted to the importance of mitigating circumstances by the Florida capital crime statute enacted in 1972, Fla.Stat. § 921.141 (1973), after Furman v. Georgia had declared unconstitutional the statutes of a number of states. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). That statute explicitly provided: In the [sentencing] proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections [(5)] and [(6)]. § 921.141(1) (emphasis added). Even though counsel may not have foreseen the Lockett rule, that a court may not preclude evidence of any mitigating circumstance, the Florida statute left no doubt that: (1) evidence of the enumerated mitigating circumstances, which included mental or emotional disturbance, was mandated, and (2) any evidence relevant to sentencing was permitted. Also available to guide counsel was the opinion of State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), in which the Florida Supreme Court discussed the new statute thoroughly, and pointed out the advantage to the defendant of presenting matters in mitigation: The most important safeguard presented in Fla.Stat. § 921.141, F.S.A., is the propounding of aggravating and mitigating circumstances which must be determinative of the sentence imposed. When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury. Dixon, 283 So.2d at 8-10 (emphasis added). Counsel for Proffitt was apprised by Dr. Crumbley of the defendant’s unstable mental condition on the evening before the trial started. Although counsel was thus alerted to the possibility of mitigating psychiatric circumstances, he obtained no psychiatric evaluation and made no effort to seek a continuance to permit further investigation. Counsel testified at the habeas corpus hearing that he had" }, { "docid": "14959440", "title": "", "text": "trial,” did not “materially contribute to the conviction,” was not “so harmful or fundamentally tainted as to require a new trial,” and was not “so inflammatory that [it] might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Id. at 383. Spencer did not allege any other instance of prosecutorial misconduct on direct appeal. The Florida Supreme Court did, however, vacate Spencer’s capital sentence, because the trial court improperly found an aggravating circumstance and improperly rejected a statutory mitigating circumstance. Id. at 384-85. On remand, the trial court conducted another hearing and found two aggravating circumstances (Spencer’s previous conviction of another felony involving violence based on the contemporaneous convictions, pursuant to Fla. Stat. § 921.141(5)(b); and the especially heinous, atrocious or cruel nature of the murder, pursuant to Fla. Stat. § 921.141(5)(h)), and three mitigating circumstances (the murder was committed while Spencer was under extreme mental or emotional disturbance, pursuant to Fla. Stat. § 921.141(6)(b); Spencer’s capacity to appreciate the criminality of his conduct was substantially impaired, pursuant to pursuant to Fla. Stat. § 921.141(6)(f); and there were a number of non-statutory mitigating factors in Spencer’s background) before again imposing a capital sentence. Spencer appealed the sentence, and the Florida Supreme Court found no merit to that challenge. See Spencer v. State, 691 So.2d 1062 (Fla.1996). Spencer then filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Spencer v. Florida, 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). On September 24, 1999, Spencer filed an amended motion for post-conviction relief with the state trial court pursuant to Fla. R.Crim. P. 3.850, raising fourteen claims, one of which alleged multiple instances of prosecutorial misconduct. After conducting an evidentiary hearing in March 2000, the state trial court denied all of them. In particular, it denied Spencer’s prosecutorial misconduct claims as procedurally barred. In addition, the state trial court concluded that Spencer’s prosecutorial misconduct claims were without merit. Spencer appealed to the Florida - Supreme Court, which again rejected all of his claims and, in particular, found" }, { "docid": "22112945", "title": "", "text": "mitigating circumstances to outweigh the aggravating circumstances found to exist. Additionally, “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). The Florida Supreme Court automatically reviews each conviction and sentence of death on an expedited basis. The trial jury recommended that Spen-kelink receive the death penalty. The trial court agreed. Pursuant to Fla.Stat.Ann. § 921.141(3), it found that the felony “was committed for pecuniary gain, either for another person’s money or to re-coup his own,” that the crime “was especially heinous, atrocious and cruel,” that Spenkelink “was previously convicted of a felony involving the use, or threat of violence to another, to-wit: armed robbery,” and that Spenkelink committed the crime while “un der sentence of imprisonment: mitigating circumstance found by the trial court was “that possibly the defendant was under the influence of extreme mental or emotional disturbance,” a consideration which, “based on the record as a whole,” the court did not regard “as a substantial factor.” See Fla.Stat.Ann. §§ 921.141(5), (6). The Supreme Court of Florida affirmed both the conviction and sentence. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). With respect to the sentence of death, the Florida Supreme Court stated: The only As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence. 313 So.2d at 671. The United States Supreme Court denied certiorari. Spenkelink v. Florida, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The petitioner next sought executive clemency. Article IV, section 8(a) of the Florida Constitution provides that the governor of Florida, with the" }, { "docid": "22683870", "title": "", "text": "to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. “(h) The capital felony was especially heinous, atrocious, or cruel.” §921.141 (5) (Supp. 1976-1977). The mitigating circumstances are: “(a) The defendant has no significant history of prior criminal activity. “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. “(c) The victim was a participant in the defendant’s conduct or consented to the act. “(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor. “(e) The defendant acted under extreme duress or under the substantial domination of another person. “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct, to- the requirements of law was substantially impaired. “(g) The age of the defendant at the time of the crime.” § 921.141 (6) (Supp. 1976-1977). Tedder has not always been cited when the Florida court has considered a judge-imposed death sentence following a jury recommendation of life imprisonment. See, e. g., Thompson v. State, 328 So. 2d 1 (1976); Douglas v. State, 328 So, 2d 18 (1976); Dobbert v. State, 328 So. 2d 433 (1976). But in the latter case two judges relied on Tedder in separate opinions, one in support of reversing the death sentence and one in support of affirming it. In one case the Florida court upheld a death sentence where the trial judge had simply listed six aggravating factors as justification for the sentence he imposed. Sawyer v. State, 313 So. 2d 680 (1975). Since there were no mitigating factors, and since some of these aggravating factors arguably fell within the statutory categories, it is unclear whether the Florida court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. It seems unlikely that it would do so, since the capital-sentencing statute explicitly provides that “[aggravating circumstances shall be limited to the following [eight specified factors].” §921.141(5) (Supp. 1976-1977). (Emphasis added.) There is no such limiting language introducing the list of statutory" }, { "docid": "22614889", "title": "", "text": "and apparently were found applicable by the jury: “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance” and “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla. Stat. Ann. §§ 921.141 (6) (b) and (f) (Supp. 1976). The purpose of these two categories is, as Justice Ervin observed in dissent below, “ ‘to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.’ [State v. Dixon, 283 So. 2d 1, 10 (1973)].” 313 So. 2d, at 679. I agree with Justice Ervin that petitioner is such a person. It is undisputed that he had been drinking virtually the entire day and night prior to the killing. Both court-appointed psychiatrists found that petitioner was an alcoholic and that “had he not been under the influence of alcohol at the time of the alleged crime, he would have been competent, knowing right from wrong and being capable of adhering to the right.” App. 11, 19. Furthermore, his actions after the murder—falling asleep with his wife’s dead body, seeking his mother-in-law’s help the next morning because his wife did not appear to be breathing properly, weeping when he realized she might be dead, and waiting for the police to come with no attempt to escape—are consistent with his being temporarily mentally impaired at the time of the crime. In light of these facts, it is not surprising that the jury found that the mitigating circumstances outweighed the aggravating. Clearly, this is not a case where the evidence suggesting death is “so clear and convincing that virtually no reasonable person could differ.” Had the Florida Supreme Court exam ined the evidence in the manner this Court trusted it would, I have no doubt that the jury recommendation of life imprisonment would have been reinstated. As Justice Ervin observed: “This was a crime of passion in a marital setting in which the excessive use of alcohol" }, { "docid": "22683862", "title": "", "text": "Legislature intended something 'especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So. 2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So. 2d, at 9. See also Alford v. State, 307 So. 2d 433, 445 (1975); Halliwell v. State, supra, at 561. We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, at 200-203. In the only case, except for the instant case, in which the third aggravating factor — “[t]he defendant knowingly created a great risk of death to many persons”— was found, Alvord v. State, 322 So. 2d 533 (1975), the State Supreme Court held that the defendant created a great risk of death because he “obviously murdered two of the victims in order .to avoid a surviving witness to the [first] murder.” Id., at 540. As construed by the Supreme Court of Florida these provisions are not impermissibly vague. (b) The petitioner next attacks the imprecision of the mitigating circumstances. He argues that whether a defendant acted “under the influence of extreme mental or emotional disturbance,” whether a defendant’s capacity “to conform his conduct to the requirements of law was substantially impaired,” or whether a defendant’s participation as an accomplice in a capital felony was “relatively minor,” are questions beyond the capacity of a jury or judge to determine. See §§ 921.141 (6)(b), (f), (d) (Supp. 1976-1977). He also argues that neither a jury nor a judge is capable of deciding how to weigh a defendant’s age or determining whether he had a “significant history of prior criminal activity.” See §§ 921.141 (6) (g)-, (a) (Supp. 1976-1977). In a similar vein the petitioner argues that it is not possible to make a rational determination whether there are “sufficient” aggravating circumstances that are not outweighed by the mitigating circumstances, since" }, { "docid": "15147944", "title": "", "text": "Knight v. Dugger, 863 F.2d 705, 710 (11th Cir.1988); Magill v. Dugger, 824 F.2d 879, 893-95 (11th Cir.1987). There was substantial and significant psychological evidence which the jury, if it followed the court’s instruction, would have considered only if it rose to the level of a statutory mitigating factor; i.e., only if the jury found that Delap committed the crime “under the influence of extreme mental or emotional disturbance.” Fla.Stat. § 921.141(6)(b) (1977) (emphasis added). There is a likelihood that the jury found that this evidence did not rise to that threshold level. In fact, the state argues that the fact that the jury rejected Delap’s psychological evidence as a statutory mitigating factor indicates that the jury rejected the evidence completely. We disagree. Had the jury been properly instructed, it may have considered the psychological evidence in mitigation even if it did not find that the evidence met the required threshold level for a statutory mitigating factor. In this case, there was substantial non-statutory mitigating evidence presented which could have led to a recommendation of a lesser sentence by the jury. This evidence included Delap’s feelings of remorse (A7-1332-33); his capacity for rehabilitation (A6-1137); his demonstrated good behavior while in prison (A7-1336, A14-2461); as well as expert psychological testimony as to Delap’s mental and emotional problems caused in part by organic brain syndrome (A6-1122-23, 1198). Furthermore, Delap cooperated with authorities after his arrest, he attended college, and was a father of young children. One or more of these factors could have caused a properly instructed jury to recommend life imprisonment. See Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed.2d 231 (1985); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The record indicates that at least one juror voted for life imprisonment. (A7-1268). Whether other jurors voted for life is not known, but the totality of the circumstances indicates that the Hitchcock error in this case was not harmless beyond a reasonable doubt. IX. DOUBLE JEOPARDY/COLLATERAL ESTOPPEL ISSUE In his petition for a writ of habeas corpus to" }, { "docid": "23032651", "title": "", "text": "S.Ct. 1951, 40 L.Ed.2d 295 (1974), in which the Florida Supreme Court discussed the new statute thoroughly, and pointed out the advantage to the defendant of presenting matters in mitigation: The most important safeguard presented in Fla.Stat. § 921.141, F.S.A., is the propounding of aggravating and mitigating circumstances which must be determinative of the sentence imposed. When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury. Dixon, 283 So.2d at 8-10 (emphasis added). Counsel for Proffitt was apprised by Dr. Crumbley of the defendant’s unstable mental condition on the evening before the trial started. Although counsel was thus alerted to the possibility of mitigating psychiatric circumstances, he obtained no psychiatric evaluation and made no effort to seek a continuance to permit further investigation. Counsel testified at the habeas corpus hearing that he had visited with Proffitt a number of times and that Proffitt had appeared lucid to him. Just as a psychiatrist should not assume the role of a lawyer, an attorney defending someone subject to the death penalty should not assume he is capable of evaluating whether his client, at the time the crime was committed, “was under the influence of extreme mental or emotional disturbance” or had a substantially impaired capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla.Stat.Ann. § 921.141(6)(b) and (f) (West Supp. 1981). This court has long recognized the responsibility of counsel to acquire expert psychiatric assistance when a defendant’s mental condition may be critical to the outcome of his case. Beavers v. Balkcom, 636 F.2d 114 (5th Cir. Unit B 1981); United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976). At the habeas hearing, counsel also stated that he did not engage in any separate and distinct preparation for the penalty phase, but prepared for that part of" }, { "docid": "3386805", "title": "", "text": "disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. (h) The capital felony was especially heinous, atrocious, or cruel. (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. (6) Mitigating circumstances. — Mitigating circumstances shall be the following: (a) The defendant has no significant history of prior criminal activity. (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant’s conduct or consented to the act. (d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor. (e) The defendant acted under extreme duress or under the substantial domination of another person. (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. (g) The age of the defendant at the time of the crime. Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, — U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the capital sentencer may not be precluded from considering evidence of nonstat-utory mitigating factors. . Ross v. State, 386 So.2d 1191 (Fla.1980), is not inconsistent with the proposition that the trial judge must give great weight to a jury recommendation of death. In Ross, the jury recommended death and the trial judge imposed a death sentence, indicating in his findings that he was bound by the jury’s recommendation. Id. at 1197. The Supreme Court of Florida ordered resentencing, stating that although a jury recommendation of death \"should be given great weight and serious consideration,” id., this trial judge had given the recommendation \"undue weight,” id. at 1193, by abdicating his statutory duty to make an \"independent judgment\" about the aggravating and mitigating circumstances. Id. at 1198. . The Supreme Court of Florida has permitted resentencing without a jury where the error in the original" } ]

[ { "docid": "22557031", "title": "", "text": "3d, at 1089, 208 Cal. Rptr., at 97. Examining the particular method of surveillance undertaken, the court then found it “significant” that the flyover “was not the result of a routine patrol conducted for any other legitimate law enforcement or public safety objective, but was undertaken for the specific purpose of observing this particular enclosure within [respondent’s] curtilage.” Ibid. It held this focused observation was “a direct and unauthorized intrusion into the sanctity of the home” which violated respondent’s reasonable expectation of privacy. Id., at 1089-1090, 208 Cal. Rptr., at 98 (footnote omitted). The California Supreme Court denied the State’s petition for review. We granted the State’s petition for certiorari, 471 U. S. 1134 (1985). We reverse. The State argues that respondent has “knowingly exposed” his backyard to aerial observation, because all that was seen was visible to the naked eye from any aircraft flying overhead. The State analogizes its mode of observation to a knothole or opening in a fence: if there is an opening, the police may look. The California Court of Appeal, as we noted earlier, accepted the analysis that unlike the casual observation of a private person flying overhead, this flight was focused specifically on a small suburban yard, and was not the result of any routine patrol overflight. Respondent contends he has done all that can reasonably be expected to tell the world he wishes to maintain the privacy of his garden within the curtilage without covering his yard. Such covering, he argues, would defeat its purpose as an outside living area; he asserts he has not “knowingly” exposed himself to aerial views. II The touchstone of Fourth Amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U. S. 735, 740 (1979). Clearly — and understandably — respondent has met" } ]

[ { "docid": "2937282", "title": "", "text": "those places into which they carried the chemicals containing the beepers. Cassity I, 631 F.2d at 464-65. The district court held that they had. We agree. Because fourth amendment rights are “personal,” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), the central inquiry in any suppression hearing is whether the defendant challenging the admission of evidence has shown a legitimate expectation of privacy in the place searched or the thing seized. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Whether a legitimate expectation of privacy exists in a particular item or place is a determination to be made on a case-by-case basis. Brown, 635 F.2d 1207 at 1211. That question in turn entails a two-part inquiry: (1) whether the individual defendant has exhibited an actual subjective expectation of privacy and (2) whether that expectation is one society recognizes as reasonable or legitimate. Katz v. United States, 389 U.S. 347, 362, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring); Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580-81, 61 L.Ed.2d 220 (1979); United States v. Brown, 635 F.2d 1207 (6th Cir.1980); United States v. Bailey, 628 F.2d 938, 940-41 (6th Cir.1980). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12. To identify which expectations merit fourth amendment protection, the courts have pointed to a number of factors. Most obvious among these is an individual’s possessory or proprietary interest in the place or thing. However, a property right alone is not determinative of whether the individual reasonably expected “freedom from governmental intrusion.” Mancusi v. De Forte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968). In United States v. Haydel, 649 F.2d 1152 (5th Cir.1981), rehearing denied, 664 F.2d 84, cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d" }, { "docid": "17273644", "title": "", "text": "of privacy in the passenger compartment or trunk of the Subaru. Therefore, he cannot successfully challenge the police conduct here. Because the district court erred in suppressing the items seized, we vacate the suppression order and remand the case for further proceedings. A defendant cannot invoke the Fourth Amendment’s protections unless he has a legitimate expectation of privacy against the government’s intrusion. United States v. Jacobsen, — U.S. -, -, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Illinois v. Andreas, — U.S. -, - - -, 103 S.Ct. 3319, 3322-24, 77 L.Ed.2d 1003 (1983); United States v. Knotts, 460 U.S. 276, _, 103 S.Ct. 1081, 1084, 75 L.Ed.2d 55 (1983); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citations omitted). The Supreme Court has on several occasions endorsed the two point test formulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), to determine if a defendant has a legitimate expectation of privacy. See, e.g., Michigan v. Clifford, — U.S. -, -, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984) (plurality opinion); United States v. Knotts, 460 U.S. at -, 103 S.Ct. at 1084; Smith v. Maryland, 442 U.S. at 740-41, 99 S.Ct. at 2580-81; Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978). Justice Harlan’s test to ascertain whether a legitimate expectation of privacy existed is: [F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). We have little doubt that Roy harbored a subjective expectation of privacy, at least as to the trunk of the Subaru. His locking the weapons and several other items in the trunk of the car indicates as much. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Therefore, Roy satisfies the" }, { "docid": "4258252", "title": "", "text": "this lawsuit. All that Hickombottom alleges is injury from past misconduct, which the court can remedy with damages. The court will thus dismiss Hickombottom’s requests for in-junctive and declaratory relief. The court will now focus on each of Hickombottom’s claims, beginning with those brought under § 1983. Hickombot-tom first alleges that the defendants’ surveillance of his apartment violated the Fourth Amendment. The preliminary question is whether this amendment restricted the defendants’ activities at all. The Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), divided this inquiry into two questions: first, “whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ ” and second, “whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable.” ’ ” Id. at 740, 99 S.Ct. at 2580, quoting Katz v. United States, 389 U.S. 347, 351, 361, 88 S.Ct. 507, 511, 516, 19 L.Ed.2d 576 (Harlan, concurring). Hickombottom has not pleaded anything which would indicate that he had a subjective expectation of privacy in his comings and goings from his apartment. Even if Hickombottom had such an expectation, it would not be one which society is prepared to recognize as reasonable. Hickombottom has not pleaded facts which would indicate that the 6500 block of S. Yale Avenue is anything other than a usual city block on a usual city street. Anyone walking down such a street, or sitting in a car parked on such a street, would have been able to observe the traffic in and out of Hickom-bottom’s apartment building. Police officers may observe those activities which the public is free to watch without fearing transgression of the Fourth Amendment. See United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55 (1983) (no expectation of privacy in traffic to and from public highway, or in movement of things from “open fields” into and out of private home). Hickombottom next alleges that the defendants violated his rights under Fourth Amendment by arresting him without a warrant. While the Supreme Court has expressed" }, { "docid": "4775757", "title": "", "text": "on the privacy interest asserted by the affected citizen. The appropriate inquiry is not to ask what was the object of the Government’s actions (i.e., was the Government searching for something?), but rather to ask whether the affected citizen has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 506 (1967) (Harlan, J., concurring), quoted in California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). This involves a two-part analysis. First, the court must ask whether “the individual manifested a subjective expectation of privacy in the object of the challenged search?” Ciraolo, supra. Second, we must determine if “society is willing to recognize that expectation as reasonable?” Id., California v. Greenwood, — U.S. -, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). As to the first question, it is undisputed that Ms. Wilkes clearly manifested a desire for privacy. Nor do we have much difficulty in concluding that society considers reasonable Ms. Wilkes’ expectation that she would be permitted to attend in private to the very personal hygienic needs arising out of her menstruation. One strains to conjure up an activity more private than the changing of a sanitary napkin. The act itself, no less than a strip search, necessitates the exposure of the arrestee’s genitalia to the observing officer; and indeed it may be the case that many women would prefer a visual strip search to the humiliation of being observed while changing a sanitary napkin or tampon. Certainly the changing of a sanitary napkin is no less private an act than urination or defecation; moreover, the Borough’s blanket policy is such as to dictate visual observation of all these acts by arrestees. And what a distinguished circuit judge has written about urinating is particularly apt in this context: There are few activities in our society more personal or private" }, { "docid": "4865731", "title": "", "text": "protections of the Fourth Amendment, a person must have a “justifiable,” “reasonable,” or “legitimate” expectation of privacy in the place or item searched. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Precisely what makes an expectation of privacy “justifiable,” “reasonable,” or “legitimate,” however, has never been clearly set forth. See O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (“No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant.”); see also Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L.Rev. 476, 490 (2011) (“Supreme Court opinions studiously avoid saying what makes an expectation of privacy ‘reasonable.’ ”). Nevertheless, the standard for evaluating whether a Fourth Amendment search has occurred, first enunciated by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is whether “the individual manifested a subjective expectation of privacy” in the place or item searched, and “society is willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). As the Katz majority noted, the first inquiry is whether the individual has shown that “he seeks to preserve [something] as private.” Katz, 389 U.S. at 351, 88 S.Ct. 507. The second inquiry does not ask whether a reasonable person would expect a certain right of privacy, but instead whether “the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081 (citations omitted). Put another way, “[t]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts" }, { "docid": "12633827", "title": "", "text": "States, 533 U.S. 27, 31-32, 121 S.Ct. 2038, 2042, 150 L.Ed.2d 94 (2001). Davis makes no trespass claim, nor could he. In 1967, the Supreme Court added a separate test — the reasonable-expectation-of-privacy test — to analyze whether a search occurred for purposes of the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 739-40, 99 S.Ct. 2577, 2579-80, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The reach of the Fourth Amendment now does not turn on the presence or absence of a physical intrusion. Katz, 389 U.S. at 353, 88 S.Ct. at 512. Thus, to determine whether the government’s obtaining access to MetroPCS’s records constitutes a search within the meaning of the Fourth Amendment, our lodestar is Katz’s reasonable-expectation-of-privacy test. Smith, 442 U.S. at 739, 99 S.Ct. at 2579-80 (citing Katz, 389 U.S. 347, 88 S.Ct. 507). “Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). “Second, is society willing to recognize that expectation as reasonable?” Id. Thus, “a party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objective expectation of privacy to succeed.” United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir. 1995). Notably, it was the interception and recording of conversations reasonably intended to be private that drove the new test and result in Katz. See 389 U.S. at 351-53, 88 S.Ct. at 511-12. The government recorded Katz’s conversations by attaching an electronic listening and recording device to the outside of a public phone booth in which Katz made calls. Id. at 348, 88 S.Ct. at 509. The government had no warrant or court order of any sort. See id. at 354-56, 88 S.Ct. at 512-514. The Supreme Court held that the government’s conduct in “electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth,” and thus constituted" }, { "docid": "23677630", "title": "", "text": "if any, of the recent Supreme Court decision in United States v. Jones, — U.S.-, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” U.S. Const, amend. IV. “If the search is reasonable, there is no constitutional problem, for the Fourth Amendment only protects individuals from unreasonable searches and seizures.” United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir.2005). It is well settled that the Fourth Amendment’s scope extends beyond criminal investigations and protects against certain arbitrary and invasive acts by the government. See, e.g., City of Ontario v. Quon, — U.S. -, 130 S.Ct. 2619, 2627, 177 L.Ed.2d 216 (2010). There are two ways in which the government’s conduct may constitute a “search” implicating the Fourth Amendment. First, a Fourth Amendment search occurs when “the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (citations and quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 32-33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied ... and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”). Determining whether one’s expectation of privacy is justifiable involves two separate inquiries: (1) whether the individual demonstrated an actual or subjective expectation of privacy in the subject of the search or seizure; and (2) whether this expectation of privacy is objectively justifiable under the circumstances. Smith, 442 U.S. at 740, 99 S.Ct. 2577 (quotation marks omitted); Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); United States v. Ferri, 778 F.2d" }, { "docid": "15621522", "title": "", "text": "that Skinner lacked a reasonable expectation of privacy in the GPS data emitted from his cellular phone. In my view, acquisition of this information constitutes a search within the meaning of the Fourth Amendment, and, consequently, the officers were required to either obtain a warrant supported by probable cause or establish the applicability of an exception to the warrant requirement. However, because the officers had probable cause to effect the search in this case and because the purposes of the exclusionary rule would not be served by suppression, I believe some extension of the good faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is appropriate. Accordingly, I would also affirm the district court’s denial of Skinner’s motion to suppress, but for reasons other than those announced by the majority- A. Reasonable expectation of privacy In the context of the Fourth Amendment, standing turns on whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The analysis of this constitutionally-protected interest involves a two-part inquiry: “First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Though the majority does not discuss the first prong of this test, Skinner’s use of the phone arguably manifests his subjective expectation of privacy in his GPS location information. In fact, the majority aptly points out that the phone was trackable in a way that Skinner most likely did not anticipate. Skinner’s erroneous belief that the phone was untrackable, or even his general ignorance of the phone’s GPS capabilities, supports the conclusion that Skinner had a subjective expectation of privacy in this information. The critical question, then, is whether society is prepared to recognize Skinner’s expectation of privacy as legitimate. The" }, { "docid": "4775756", "title": "", "text": "if visual observation of arrestees’ bathroom use is a “search” for Fourth Amendment purposes, defendants believe that their policy and its application to Ms. Wilkes are reasonable. We will consider these arguments in turn, for they track the necessary Fourth Amendment inquiry. To evaluate plaintiff’s claim, this court must decide whether the defendants’ actions intruded on interests secured to the plaintiff by the Fourth Amendment. The defendants argue that the mere observation of Ms. Wilkes while she changed her sanitary napkin was not a “search” because Officer Duffy was not looking for anything. This proposition has a certain simple appeal; upon closer examination, however, it is revealed as meritless. “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). Therefore, in determining whether the Fourth Amendment is applicable to a particular act by government officials, the Supreme Court has focused not on the motive for the Government’s intrusion but rather on the privacy interest asserted by the affected citizen. The appropriate inquiry is not to ask what was the object of the Government’s actions (i.e., was the Government searching for something?), but rather to ask whether the affected citizen has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 506 (1967) (Harlan, J., concurring), quoted in California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). This involves a two-part analysis. First, the court must ask whether “the individual manifested a subjective expectation of privacy in the object of the challenged search?” Ciraolo, supra. Second, we must determine if “society is willing to recognize that expectation as reasonable?” Id., California v. Greenwood, — U.S. -, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). As to the first" }, { "docid": "14518096", "title": "", "text": "government’s arguments were properly before the district court and because they present questions of law or undisputed fact, we treat them as properly before us on appeal, see United States v. Lewis, 621 F.2d 1382,1387 (5th Cir.1980), cert. denied, 450 U.S. 935,101 S.Ct. 1400, 67 L.Ed.2d 370 (1981), and turn to consideration of their merits. III. The United States argues that the “district court plainly erred in suppressing the truck tires” because George does not have an objectively reasonable expectation of privacy in tires on a truck that he drives and parks in public places. Appellant’s Br. at 32. We agree. The Fourth Amendment protects only those “expectations] of privacy ... that society accepts as objectively reasonable,” California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); see also, e.g., Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 360-61, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), and generally, “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection,” Katz, 389 U.S. at 351, 88 S.Ct. at 511. The Supreme Court has repeatedly refused to recognize a legitimate Fourth Amendment privacy interest in those parts of an automobile’s interior that are visible from outside. The Court held in New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986), for example, that the visual examination (from outside the vehicle)- of an identification number appearing on the vehicle’s interior “does not constitute a [Fourth Amendment] ‘search.’ ” See also Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (plurality opinion) (“There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.” (citations omitted)). A majority of the Supreme Court has never held that there is no legitimate expectation of privacy in the exterior of a vehicle. A plurality of the" }, { "docid": "18737376", "title": "", "text": "was not itself a deprivation, within the meaning of section 1983, of plaintiffs’ First Amendment rights. III. We also reject the plaintiffs’ claim that the presence of the deputies at the concert, over plaintiffs’ objections, violated plaintiffs’ rights under the Fourth Amendment. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). The determination whether a person has such an interest is “a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). It is doubtful whether plaintiffs have satisfied the first part of that inquiry, i.e., that they had a subjective expectation of privacy. In any event, they failed the second, as any such expectation would have been plainly unreasonable. We conclude that plaintiffs retained no constitutionally protected expectation of privacy in the concert grounds for at least three reasons: (1) the general public was invited to the concert; (2) the concert was conducted in an open field; and (3) the deputies had a legal right to inspect the plaintiffs’ premises because the premises were licensed for the sale of intoxicating beverages and the officers were present to enforce the laws governing the sale of such beverages. Plaintiffs do not contest the fact that the general public was invited to attend the concert upon payment of the admission price. Plaintiffs’ contention that the deputies’ presence on their premises violated the Fourth Amendment appears to stem from the fact that the deputies entered the concert grounds without paying. Such a contention is utterly without merit. Those things that a person knowingly exposes to public view are not protected from official eyes by the Fourth Amendment. See Ciraolo, 106 S.Ct. at 1812; United" }, { "docid": "7265486", "title": "", "text": "in the First Count (and, derivatively, the § 1983 conspiracy claim of the Fourth Count), it was previously determined, will be governed by the law prevailing at the time of the alleged violation. See Letter Opinion, dated May 10, 1991 (denying plaintiffs’ motion for reconsideration of denial of class certification) (hereinafter “Letter Opinion”). As the court’s previous overview of the development of the constitutional law of privacy made clear, the law most favorable to plaintiffs is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the case in which the Supreme Court first determined that the Fourth Amendment’s protections apply where there is a “reasonable expectation of privacy.” See Letter Opinion at 9-10 (discussing Fourth Amendment jurisprudence from Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), which employed a physical trespass approach to the right to privacy, to Katz). Thus, for purposes of the summary judgment motions, the court will apply the Katz “reasonable expectation of privacy” formulation to determine if plaintiffs’ constitutional claims regarding conversations which occurred over beeped telephone lines are legally viable. It is clear that plaintiffs did not have a reasonable expectation of privacy in conversations which took place over the beeped telephone lines. The Supreme Court has described the “reasonable expectation of privacy” test endorsed in Katz as follows: Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of a challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). The first prong of this inquiry relates to the person’s subjective intent, i.e. whether he or she actually had an expectation of privacy. The second prong is an objective component, i.e. whether that expectation was reasonable. It is clear beyond any doubt that because all the police" }, { "docid": "18737375", "title": "", "text": "468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (prohibition on sleeping in certain areas under the control of the National Park service was reasonable time, place, manner regulation despite the fact that it effectively prevented round-the-clock demonstration to protest the plight of the homeless on Mall and in Lafayette Park in Washington, D.C.). Nor are we dealing with a case where the enforcement action is brought merely to suppress the expressive conduct, regardless of compliance with the regulations. Plaintiffs are certainly correct that the purr pose of the injunction action was to prevent the concert unless it complied with the ordinance, but this in no way undermines the legitimacy of the county’s attempts to enforce its laws. Plaintiffs point to nothing which would allow the inference that the defendants wanted to shut down the concert, regardless of compliance with the ordinance. The county was merely attempting to secure compliance with an ordinance that it considered constitutional. Thus we hold that, under the circumstances of this case, the unsuccessful attempt to enforce the ordinance was not itself a deprivation, within the meaning of section 1983, of plaintiffs’ First Amendment rights. III. We also reject the plaintiffs’ claim that the presence of the deputies at the concert, over plaintiffs’ objections, violated plaintiffs’ rights under the Fourth Amendment. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). The determination whether a person has such an interest is “a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). It is doubtful whether plaintiffs have satisfied the first part of that inquiry, i.e., that they had a subjective expectation of privacy. In any" }, { "docid": "23220597", "title": "", "text": "personal, and may be enforced only by persons whose own protection under the Amendment has been violated. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). To contest the validity of a search, a defendant must demonstrate that he himself exhibited an actual subjective expectation of privacy in the area searched, and that this subjective expectation is one that society is willing to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A defendant lacks “standing” in the Fourth Amendment context when his contacts with the searched premises are so attenuated that no expectation of privacy he has in those premises could ever be considered reasonable. See Rakas, 439 U.S. at 137-38, 99 S.Ct. at 427-28. Although the extent of a defendant’s property or possessory interest in the place searched is a factor generally considered in determining the reasonableness of a defendant’s expectation of privacy, United States v. Osorio, 949 F.2d 38, 40 (2d Cir.1991), a defendant’s lack of such an interest does not rule out the possibility that he may still show a reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990) (houseguest has legitimate expectation of privacy); Rakas, 439 U.S. at 143-144 n. 12, 99 S.Ct. at 430 n. 12. Residence may give rise to an expectation of privacy, United States v. Babwah, 972 F.2d 30, 35 (2d Cir.1992), but an individual may also have a “sufficient interest in a place other than his own home so that the Fourth Amendment protects him.” Rakas, 439 U.S. at 142, 99 S.Ct. at 430. For instance, where a guest has permission to use an apartment, is given a key, and uses the apartment in the owner’s absence, society may be prepared to recognize the guest’s privacy, even though no property interest exists. Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730," }, { "docid": "23380687", "title": "", "text": "these oral communications. In similar fashion, the defendants’ motions for summary judgment and defenses of qualified immunity are based on the fact that Kee and Routier cannot demonstrate that they ever possessed a reasonable expectation of privacy at the grave site upon which to base their constitutional and statutory claims. We approach both the constitutional and statutory claims under essentially the same analysis, asking whether Kee and Routier can demonstrate a reasonable expectation of privacy. Accordingly, our analysis necessarily focuses on this precise question. A. Reasonable Expectation of Privacy in Oral Communications “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (“Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.”). Following the Katz standard, “[o]ur Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he [sought] to preserve [something] as private.... Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (citations and internal quotations omitted). Therefore, in order to establish a constitutionally protected reasonable expectation of privacy, Kee and Routier must demonstrate both that they had an actual expectation of privacy, based on a showing that they sought to preserve something as private (which we call a subjective expectation of privacy), and that their expectation of privaqy is one that society recognizes as reasonable (which we call an objective expectation of privacy). The" }, { "docid": "17859335", "title": "", "text": "S.Ct. 507, 19 L.Ed.2d 576 (1967), the question whether particular governmental conduct constitutes a “search” for Fourth Amendment purposes has turned upon whether that conduct intruded on a constitutionally protected expectation of privacy. Smith v. Maryland, 442 U.S. 735, 739-40, 99 S.Ct. 2577, 2579-80, 61 L.Ed.2d 220 (1979). In holding the warrantless wiretapping of conversations in a phone booth to be violative of the Fourth Amendment, the Supreme Court discarded the traditional analysis of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), which examined whether an actual physical invasion of the house or “curtilage” had occurred. Id. at 466, 48 S.Ct. at 568. See also id. at 461, 48 S.Ct. at 566-67 (citing Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). In its place, the Court substituted an approach which examined not how, but whether, the government has violated the privacy upon which the individual has justifiably relied. Katz, 389 U.S. at 353, 88 S.Ct. at 512. In a concurring opinion, Justice Harlan explained the Court’s analysis in terms which now represent the standard articulation of Katz: whether the government has intruded upon the individual’s “reasonable expectation of privacy.” Id. at 360, 88 S.Ct. at 516 (Harlan, J., concurring). Thus, in Katz, the Court examined not whether the government had violated Katz’ property interest in a phone booth, but whether it had violated Katz’ justifiable reliance on the privacy of the phone booth. 389 U.S. at 353, 88 S.Ct. at 512. Such an approach recognizes that the “constitutionally protected area” analysis failed to protect against surveillance techniques made possible through technological advances which enabled police to conduct intrusive surveillance without a physical invasion. See Ciraolo, 106 S.Ct. at 1815 (Powell, J., dissenting) (citing Goldman v. United States, 316 U.S. 129, 139-41, 62 S.Ct. 993, 998-99, 86 L.Ed. 1322 (1942) (Murphy, J., dissenting); Olmstead, 277 U.S. at 474, 48 S.Ct. at 571 (Brandeis, J., dissenting)). Katz and its progeny enunciate a two-pronged inquiry as to whether the government has intruded upon an individual’s reasonable expectation of privacy. First, the" }, { "docid": "18555214", "title": "", "text": "in determining whether police conduct resulted in a Fourth Amendment “search.” In Katz, government agents had intercepted a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the government’s argument that a “search” had not occurred because there had not been a physical intrusion into a “constitutionally protected area”, stating: [T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 6 Otto 727, 96 U.S. 727, 733, 24 L.Ed. 877. Katz, 389 U.S. at 351-52, 88 S.Ct. at 511. In defining the criteria to be applied in determining whether a Fourth Amendment “search” had taken place, the Court concluded that governmental intrusion would constitute a search and seizure within the Fourth Amendment only if it “violated the privacy upon which [the defendant] justifiably relied.” Katz, 389 U.S. at 353, 88 S.Ct. at 512. In Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), the Court noted that an evaluation of governmental action asserted to have impinged upon an individual’s reasonable expectation of privacy embraced consideration of two discrete questions: The first is whether the individual, by his conduct,, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361, 88 S.Ct., at 516 — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351, 88 S.Ct., at 511. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id., at" }, { "docid": "7595570", "title": "", "text": "thing seized.” United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983) (citing United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982)). See also, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (discussing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Thus, given the facts here, the basic question is whether Alinovi had a reasonable expectation of privacy in her term paper. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court, adopting Justice Harlan’s statement of the rule in his concurrence in Katz v. United States, 389 U.S. at 360-62, 88 S.Ct. at 516-17, announced a two-step test for determining whether a reasonable expectation of privacy exists. The first question is: whether the individual, by his conduct, has “exhibited an actual (subjective) ex- ‘ pectation of privacy”, 389 U.S., at 361 [88 S.Ct. at 516] — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351 [88 S.Ct. at 511]. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” Id., at 361 [88 S.Ct. at 516] — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353 [88 S.Ct. at 512]. See, Rakas v. Illinois, 439 U.S. at 143-44 n. 12 [99 S.Ct. at 430-31 n. 12] (concurring opinion); United States v. White, 401 U.S. [745], at 752 [91 S.Ct. at 1126] (plurality opinion). 442 U.S., at 740-41, 99 S.Ct. at 2580-81 (footnote omitted). See also, United States v. Thornley, supra; United States v. Hershenow, supra. Applying this test to the case at bar, we must reject, as did the district court, Alinovi’s claim to Fourth Amendment protection. The district court, trying the case without a jury, found that Alinovi did not have a reasonable expectation of privacy in her term paper after she brought it to Chris’s core evaluation meeting" }, { "docid": "17475752", "title": "", "text": "Analysis I. Search and Seizure Analysis Kyllo’s essential claim is that a warrant was constitutionally necessary before the government could employ the thermal imaging device. The Fourth Amendment’s restrictions on governmental searches and seizures are triggered when the government invades an individual’s privacy. See Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The individual need not show actual intrusion or invasion into a “protected space,” as “the Fourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures.” Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We follow a two-part test to determine whether the Fourth Amendment has been violated by a claimed governmental intrusion into an individual’s privacy. See id. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (adopting Katz reasoning). We evaluate whether the individual has made a showing of an actual subjective expectation of privacy and then ask whether this expectation is one that society recognizes as objectively reasonable. See Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). In conducting this evaluation of whether a reasonable expectation of privacy has been infringed upon by government action, we consider the facts of the case at hand. See Dow Chemical Co. v. United States, 476 U.S. 227, 239 n. 5, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (“[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.”). No one disputes that a warrant was not obtained before the Agema 210 was used to scan the thermal emissions from Kyllo’s house. In its inquiry into the technological capacities of the Agema 210, the district court found that it was a “non-intrusive device which emits no rays or beams and shows a" }, { "docid": "12634572", "title": "", "text": "indiscriminate and most intrusive method of surveillance. To justify its application, a narcotics officer swore that “conventional law enforcement techniques, such as debriefing defendants, undercover investigations, informants, and surveillance had been attempted but had failed____” Affidavit of Phil Harrold, Gov’t Exhibit 1A at 13. Yet now the government argues, in effect, that conventional surveillance would have revealed the activities that led to Cuevas’s arrest. It cannot have it both ways; “A juxtaposition of such contentions trifles with the Court.” United States v. de Luna, 815 F.2d 301, slip op. at 3498 (5th Cir., 1987). Furthermore, the government wishes to stretch Ciraolo’s holding far beyond its natural reach. Ciraolo reaffirmed the Katz fourth amendment analysis of whether a person has a constitutionally protected reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). That analysis uses a two-part inquiry: “first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Ciraolo, 106 S.Ct. at 1811. We do not doubt that Cuevas manifested the subjective expectation of privacy in his backyard necessary to satisfy the first part of the inquiry: he erected fences around his backyard, screening the activity within from views of casual observers. In addition, the area monitored by the camera fell within the curtilage of his home, an area protected by traditional fourth amendment analysis. The second part focuses on “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). To measure the government’s intrusion we must consider the expectations of society. Ciraolo teaches us that a fly-over by a plane at 1,000 feet does not intrude upon the daily existence of most people; we must now determine whether a camera monitoring all of a person’s backyard activities does. This type of surveillance provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian" } ]

[ { "docid": "22706319", "title": "", "text": "rule concerning delayed petitions, Rule 9(a) of the Rules Governing § 2254 Cases in the United States District Courts. See id. at 332-34, 116 S.Ct. at 1303. The Court distinguished between successive petitions and first federal habeas petitions: “Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” Id. at 324, 116 S.Ct. at 1299. At the same time, the Court expressed a clear deference to the rules that Congress has fashioned concerning habeas. See id. at 321-23,116 S.Ct. at 1298. There may be circumstances where the limitation period at least raises serious constitutional questions and possibly renders the habeas remedy inadequate and ineffective. Cf. Triestman v. United States, 124 F.3d 361, 373-380 (2d Cir.1997) (§ 2255). After considering the claims Mr. Miller desires to raise, however, we are satisfied that such circumstances are not implicated here. It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling. See Calderon v. United States District Court, 128 F.3d 1283, 1287-88 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998). Moreover, Mr. Miller does not contend, for example, that a constitutional violation has resulted in the conviction of one who is actually innocent or incompetent. See Schlup v. Delo, 513 U.S. 298, 324-29, 115 S.Ct. 851, 865-68, 130 L.Ed.2d 808 (1995); Cooper v. Oklahoma, 517 U.S. 348, 352-56, 116 S.Ct. 1373, 1376-77, 134 L.Ed.2d 498 (1996). The one-year time period begins to run in accordance with individual circumstances that could reasonably affect the availability of the remedy, see 28 U.S.C. § 2244(d)(1)(B), (D); see also Calderon, 128 F.3d at 1289 (limitation period tolled for extraordinary circumstances over which inmate had no control), but requires inmates to dillegently pursue claims. Mr. Miller had from October 4,1993 to file his federal habeas petition. He had an additional year after the enactment of AEDPA given this circuit’s decision in Simmonds. Mr. Miller contends that because he was" } ]

[ { "docid": "23108822", "title": "", "text": "to determine, in an appropriate case, that the discretionary deprivation of a prisoner’s access to his own legal materials and law library materials prevented a prisoner from petitioning for a writ of habeas corpus in federal court, we would be obliged to consider granting a request for equitable tolling in order to avoid the constitutional difficulty posed by such a denial of access to the federal courts. See Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (instructing that “statutes [should] be interpreted to avoid constitutional difficulties”). This is not such a case, however. On the day petitioner’s one-year limitations period began to run, April 25, 1996, petitioner was in solitary confinement where he was allegedly denied access to his legal files and the law library. He had been placed in solitary confinement on November 15, 1995, and was released on May 16, 1996, that is, 22 days into the one-year limitations period. Petitioner urges this Court equitably to toll the limitations period during this 22-day period. We decline to do so, however, because, even assuming that the alleged deprivation of access to his legal materials and the • law library constituted an “extraordinary circumstance” warranting equitable tolling, petitioner cannot show that this extraordinary circumstance prevented him from filing a timely habeas petition. It cannot plausibly be said that, but for those 22 days at the very beginning of the one-year limitations period during which petitioner was allegedly denied access to legal materials, he would have been able to file his petition within the one-year limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.2000) (denying equitable tolling based on lack of diligence where petitioner had been denied access to legal materials for approximately six months but had regained access to legal materials six months prior to expiration of the .limitations period), cert, denied, — U.S. —, 121 S.Ct. 1498, 149 L.Ed.2d 383 (2001); cf. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (denying equitable tolling for lack of diligence because, among other reasons, petitioner failed to “demonstrate! ] why he did" }, { "docid": "18523178", "title": "", "text": "Finally, courts have held that a petitioner’s educational level will not necessarily constitute extraordinary circumstances sufficient to warrant equitable tolling. See, e.g., Thomas, 2007 WL 539039, at *2 (“[P]etitioner’s arguments for equitable tolling—that he was ignorant of the law and had to rely on other inmates for help, lacked education, had difficulty in obtaining court records, and receiving mail at the facility—are not ‘extraordinary,’ as they apply to most inmates.”). According to the Second Circuit in Diaz, the primary inquiry for extraordinary circumstances is how “severe an obstacle it is for the prisoner endeavoring to comply with AEDPA’s limitations period.” 515 F.3d at 154. There, the petitioners’ lack of English proficiency might have warranted tolling, but they failed to establish the due diligence necessary to satisfy the two-prong equitable tolling inquiry. See id. at 151, 154 (“[T]he diligence requirement of equitable tolling imposes on the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate his language deficiency.”). Mr. Adkins acknowledged at oral argument that when viewed independently, none of the circumstances he alleges rises to the level of an “extraordinary circumstance” as defined in the case law. However, he argues that under a totality of circumstances approach the combination of his placement in Northern Cl CDU twenty-three hour lockdown and attendant lack of access to a law library, his lack of a high school education, and his lack of notice of his appellate rights collectively presents an “extraordinary circumstance” that prevented him from timely filing his federal habeas petition on Juné 15, 2001 (or from filing his state habeas petition by that date so as to trigger statutory tolling under 28 U.S.C. § 2244(d)(2)). Yet, there are several difficulties with Mr. Adkins’s argument: first, some of the circumstances were not beyond his control; and second, even assuming these circumstances were difficult, they appear not to have prevented Mr. Adkins from pursuing his legal rights. First, like the petitioner in Hizbullahankhamon,. Mr. Adkins was placed in solitary confinement as a result of his own misconduct. At the evidentiary hearing, Mr. Adkins testified that he was placed" }, { "docid": "22377056", "title": "", "text": "the benefit of equitable tolling of the AEDPA statute, we have held that there must be “extraordinary circumstances” beyond the prisoner’s control that made it impossible to file a petition on time. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997). In our more recent en banc pronouncement on the subject, we rejected the argument that lack of access to library materials automatically qualified as grounds for equitable tolling, and we emphasized the importance of a more fact-specific inquiry. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000)(en banc). In Beeler, a capital habeas corpus case, we held that the statute was equitably tolled when the petitioner’s attorney moved out of the state, a matter over which the petitioner had no control, and that made it impossible for another attorney to file a petition within the statutory limits. In capital cases, an indigent petitioner has a statutory right to counsel. See 21 U.S.C. § 848(q)(4)(B). Thus, the dereliction of his appointed counsel made it impossible for the petitioner to file the petition he was statutorily entitled to file. Beeler, 128 F.3d at 1288. We conclude that the miscalculation of the limitations period by Frye’s counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir.2000)(AEDPA statute of limitations not equitably tolled by lawyer’s mistake resulting in missed deadline, because such a mistake is not an extraordinary circumstance); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999)(concluding that, to the extent any equitable tolling is available for AEDPA, no tolling occurred because of a lawyer’s mistake resulting in a missed deadline). AFFIRMED." }, { "docid": "12105528", "title": "", "text": "prejudiced his opportunity to file a timely petition by allegedly delaying the delivery of his case file for a full year, but it does not appear that Earl required his case file to prepare his habeas petition. His petition lists a single claim for relief—that his federal constitutional rights were violated when the prosecutor introduced Earl’s allegedly inadmissible confession at trial. Earl made this very argument before both the state trial court and the supreme court. Second, Earl argues that the lack of access to Minnesota legal materials in Florida, when considered in conjunction with the delayed notice, constitutes an extraordinary circumstance making equitable tolling appropriate. Earl claims that he required Minnesota legal materials to determine the date when direct review concluded and the limitations period began to run. The applicable rules, however, are United States Supreme Court Rules 13.1 and 13.3, which Earl does not allege were unavailable to him. Moreover, lack of access to legal resources does not typically merit equitable tolling. “Even in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been warranted.” Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.2000). Finally, Earl argues that the limited access his prison employment afforded him to the law library, when considered in conjunction with the delayed notice, was an extraordinary circumstance making equitable tolling appropriate. He asserts that the library was only available to him for a few hours on Saturdays due to the nature of his prison job. Because there is “no freestanding constitutional right to a particular number of hours in the prison law library,” Entzi v. Redmann, 485 F.3d 998, 1005 (8th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 1714, 170 L.Ed.2d 522 (2008), Earl’s alleged limited access to the library does not impact our determination that he failed to act with the requisite diligence. Since we conclude that Earl did not diligently pursue his rights he is not entitled to equitable tolling of the AEDPA statute of limitations. B. Earl argues in the alternative that the district court erred by not statutorily tolling" }, { "docid": "22435548", "title": "", "text": "Chaffer also argues that equitable tolling can save his federal habeas petition from untimeliness. A petitioner seeking equitable tolling bears the heavy burden of showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). A Chaffer alleges that his pro se status, a prison library that was missing a handful of reporter volumes, and reliance on helpers who were transferred or too busy to attend to his petitions justified the delay; however, these circumstances are hardly extraordinary given the vicissitudes of prison life, and there is no indication in the record that they made it “impossible” for him to file on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009). While denial of access to legal files may in some cases constitute “the type of external impediment for which we [grant] equitable tolling,” Waldrom-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.2009), Chaffer’s allegations are insufficient. First, “he entrusted [his inmate law clerk] with his legal documents at his peril.” United States v. Cicero, 214 F.3d 199, 205 (D.C.Cir.2000). Second, although he alleges that he lacked access to his files the entire time his inmate law clerk was working on his petition, he “does not point to specific instances where he needed a particular document ... and could not have procured that particular document when needed.” Waldron-Ramsey, 556 F.3d at 1013-14. Even crediting his assertion that he lacked access to his files for 46 days, rather than the 4 days post-transfer as supported by the record, tolling the entire period still makes his federal filing too late because he needs all but six days tolled. Chaffer’s mistaken reliance on Saffold v. Carey, 312 F.3d 1031 (9th Cir.2003), as creating a bright-line rule for timeliness of California habeas petitions is also unavailing. Harris v. Carter, 515 F.3d 1051 (9th Cir.2008), is distinguishable, as there the petitioner relied on a correct reading of then-current case law, whereas here Chaffer relied on a misunderstanding. Furthermore, Harris held that" }, { "docid": "10362752", "title": "", "text": "added). This new one year time limitation is presumptively subject to equitable tolling. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990) (holding that the doctrine of “equitable tolling” is presumptively applicable to suits against private defendants as well as suits against the United States); United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 1792 n. 10, 85 L.Ed.2d 64 (1985) (holding that filing deadlines are generally subject to “equitable tolling”). However, the Ninth Circuit has held that equitable tolling of the AEDPA’s time limitation should only be allowed when “ ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Calderon, 112 F.3d at 391 (citing AlvarezMachain v. United States, 107 F.3d 696, 701 (9th Cir.1997)). We now turn to Defendant Van Poyck’s attempt to prove “extraordinary circumstances” exist in the instant case. B. DEFENDANT HAS NOT SHOWN THAT “EXTRAORDINARY CIRCUMSTANCES” BEYOND HIS CONTROL HAVE MADE IT IMPOSSIBLE FOR HIM FOR FILE HIS PETITION ON TIME Defendant has advanced two arguments in support of his Motion for a sixty day extension of time: (1) that he has been unable to prepare his § 2255 motion because he cannot secure copies of certain transcripts from various court reporters; and (2) that “[d]uring the last two months, there have been four ‘general lockdowns,’ each lasting several days which has greatly limited—virtually eliminated—Defendant’s access to [the prison’s] Law Library where there are but ten typewriters for the over one thousand inmates here.” (See Def s Mot. at 1-2.) Defendant has not argued, however, that these were “extraordinary circumstances” that have prevented him from filing a timely motion. Before a request for an extension of time to file a § 2255 motion is granted, the district court must first be satisfied that “extraordinary circumstances” beyond a prisoner’s control justify the equitable tolling of the AED-PA’s clearly established period of limitation. Alvarez-Machain, 107 F.3d at 701. And district judges should only “authorize extensions when this high hurdle is surmounted.” Calderon, 112 F.3d at 391. In fact," }, { "docid": "22695192", "title": "", "text": "Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Yang relies principally on Mendoza v. Carey, in which the Ninth Circuit held “[the] combination of (1) a prison law library’s lack of Spanish-language legal materials, and (2) a petitioner’s inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances.” 449 F.3d 1065, 1069 (9th Cir.2006). The Second Circuit reached a similar result in Diaz v. Kelly, 515 F.3d 149 (2d Cir.2008). We have taken a seemingly contrary position. In Laurson v. Leyba, we rejected the proposition that another type of language deficiency, petitioner’s dyslexia, constituted extraordinary circumstances sufficient to warrant equitable tolling. 507 F.3d 1230, 1232 (10th Cir.2007). Our conclusion cited Turner v. Johnson, a Fifth Circuit age discrimination case which held unfamiliarity with the law due to illiteracy does not toll a limitations period “whether the unfamiliarity is due to illiteracy or any other reason.” 177 F.3d 390, 392 (5th Cir.1999). Though we have not published a decision directly addressing proficiency in the English language, our unpublished decisions have consistently and summarily refused to consider such a circumstance as extraordinary, warranting equitable tolling. Gomez v. Leyba, a case remarkably similar to the one before us, is instructive. 242 Fed.Appx. 493 (10th Cir.2007). In Gomez, the petitioner requested a COA arguing his delay in filing his habeas petition “should be excused because (1) he did not receive appointed counsel to help him file a habeas application, (2) the attorney who assisted him with his 35(b) motion did not advise him on how to file a habeas application, and (3) he is unfamiliar with the English language.” Id. at 495 Based on Turner and our prior unpublished decisions, we concluded Gomez failed to allege “extraordinary circumstances warranting equitable tolling.” Id. Here, Yang states only that English is his second language, not that he cannot speak or write it. While he states he had an interpreter in the state court proceedings, he does not explain how he filed his 2000 pro se state post-conviction pleadings from the same facility he has occupied throughout the relevant time" }, { "docid": "22787054", "title": "", "text": "of when the time limit begins indicates that Congress did not intend to permit courts to read other unmentioned and open-ended equitable exceptions into the statute. Id. at 650. The rationale in Giles, however, has been expressly rejected by the circuit courts addressing this issue. The Calderon Court, the first to decide the issue, rejected the argument advanced in Giles, stating, 128 F.3d at 1288-89; accord Miller, 145 F.3d at 618 (“Construing § 2244(d)(1) as a statute of limitation clearly serves [the purpose of curbing abuses of the habeas process]. It provides a one year limitation period that will considerably speed up the habeas process while retaining judicial discretion to equitably toll in extraordinary circumstances.”). [a] one-year statute of limitation will ... serve this goal quite well; not as well as a strict jurisdictional bar to be sure, but [§ 2244’s] time-limit will doubtless speed up the habeas process considerably. Equitable tolling will not be available in most cases, as extensions of time will only be granted if “extraordinary circumstances” beyond a prisoner’s control make it impossible to file a petition on time. We have no doubt that district judges will take seriously Congress’s desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted. Similarly, Harris rejected the argument advanced in Giles that the inclusion of subparts one through four indicates that Congress did not intend for there to be equitable tolling of the period of limitation. This argument, the court concluded, “reads too much into any negative inference that may reasonably be drawn from the exceptions.” Harris, 209 F.3d at 329. The exceptions ... simply make the writ available to address later arising circumstances .... Without these exceptions, a petitioner could inappropriately be denied the writ altogether, “risking injury to an important interest in human liberty.” The inclusion of these statutory provisions does not give rise to the inference that the application of the limitation period must otherwise be absolute, as might be the case if the period were jurisdictional. Id. (citation omitted). In fact, the court in Miller, stated that" }, { "docid": "18523174", "title": "", "text": "before the petitioner’s filing deadline was “extraordinary” as a matter of law. See 224 F.3d at 133. Similarly, in Baldayaque, the Court explained that “an attorney’s conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary circumstances’ ” required for equitable tolling. See 338 F.3d at 152-53. The petitioner’s attorney in Baldayaque failed to file a federal habeas application even though his client specifically requested him to do so, incorrectly informed his client that the filing period had passed, and failed to do any research on the habeas issue. See id. at 150-52. The Second Circuit emphasized that the attorney, in “refusing to do what was requested by his client on such a fundamental matter ... violated a basic duty of an attorney to his client.” Id. at 152. In both Valverde and Baldayaque, the corrections officer’s actions and attorney’s misrepresentations caused the petitioners to miss their filing deadlines for federal habeas relief. Finally, in Diaz, the Court held that an English language deficiency could constitute an “extraordinary circumstance” and that an unusual delay in a petitioner’s receipt of a state appellate court’s decision denying leave to appeal was an extraordinary circumstance. See 515 F.3d at 154-55. As to Mr. Adkins’s argument that being housed in solitary confinement, and the attendant lack of physical access to a law library, warrants equitable tolling, district courts within the Second Circuit have routinely held that such a circumstance is not “extraordinary” and is not a reason for equitable tolling. These courts reason that even if placement in solitary confinement is a severe obstacle to pursuing legal rights, the obstacle resulted from the petitioner’s own improper conduct—in this case, assaulting a DOC employee—and ordinarily is not for reasons beyond the petitioner’s control. See, e.g., Hizbullahankhamon v. Walker, 105 F.Supp.2d 339, 344 (S.D.N.Y.2000) (rejecting an equitable tolling argument based on petitioner’s placement in solitary confinement, with resultant loss of library privileges, because the circumstances stemmed from his own misbehavior), aff'd, 255 F.3d 65 (2d Cir.2001) (affirming on reasonable diligence grounds because the petitioner failed to timely file during the remaining limitations period), cert." }, { "docid": "22136982", "title": "", "text": "equitably tolled the AEDPA limitations period because prison officials delayed the request, causing the petitioner to miss the filing deadline. See 187 F.3d at 1107. In Calderon v. United States District Court (Beeler), 128 F.3d 1283 (9th Cir.1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc), we equitably tolled the AEDPA limitations period because the defendant’s lead counsel had withdrawn to accept employment in another state, leaving the replacement counsel with an unusable work product. See 128 F.3d at 1289. Finally, in Calderon (Kelly), we applied equitable tolling because the petitioner’s alleged mental incompetency was “an extraordinary circumstance beyond the prisoner’s control,” which rendered him “unable to assist his attorney in the preparation of a habeas petition.” 163 F.3d at 541. The equitable tolling doctrine permits tolling “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Calderon (Kelly), 163 F.3d at 541. If Lott’s second temporary transfer ended only a day after his AEDPA filing period had lapsed, a finding of impossibility could more easily be fitted into the case law. Yet we can certainly hypothesize cases in which a pro se prisoner litigant had access to his legal files on the days before his AEDPA limitation period expired, but earlier events had so disabled him as to make a timely filing impossible (e.g., a temporary transfer, such as Lott’s, which lasted 360 days). The issue of the “impossibility” of a timely filing of a federal habeas petition may, in some circumstances, involve the confluence of numerous factors beyond the prisoner’s control. However, imposing extraordinarily high evidentiary standards on pro se prisoner litigants — who have already faced an'unusual obstacle beyond their control during the AEDPA limitation period— runs against the grain of our en banc ruling in Rand, which concluded that “affirmative measures are sometimes required to ensure that a prisoner’s access to the courts is ‘adequate, effective, and meaningful.’” 154 F.3d at 958 (quoting Bounds v. Smith, 430 U.S. 817, 822-23, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977))." }, { "docid": "21261188", "title": "", "text": "file the present Petition on time. See Syms v. Chapman, 1997 WL 561313 *4 (S.D.Ga. August 19, 1997)(petition-er, whose previous federal petition had been denied without prejudice for failure to exhaust available state remedies, could not pursue subsequent habeas petition after allowing limitations period to run); United States v. Maldonado, 1997 WL 360932 *3 (E.D.Pa. June 26, 1997)(“[t]hat the defendant is not knowledgeable in the law is no excuse for failing to abide by the limitation period”); Bolds v. Newland, 1997 WL 732529 *2 (N.D.Cal. November 12, 1997)(“[e]quitable tolling is available only when extraordinary circumstances beyond a prisoner’s control make it impossible for him to file a petition on time____Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances”); cf. United States v. Flores, 981 F.2d 231, 236 (5th Cir.1993)(illiteracy, lack of training in the law, and failure “to appreciate the legal significance of facts” do not constitute “cause” for habeas petitioner’s failure to fulfill state law procedural requirement); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir.1992)(same); Worthen v. Kaiser, 952 F.2d 1266, 1268-69 (10th Cir.1992)(petitioner’s failure to discover the “legal significance” of the operative facts does not constitute “cause”); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986)(petitioner’s illiteracy does not constitute “cause”). CONCLUSION AND RECOMMENDATION The applicable statute of limitations commenced running on April 24, 1996, and expired long before the filing of the present Petition, unless limitations were tolled during the pendency of Petitioner’s prior federal habeas petition. Congress did not intend that section 2244(d)(2) toll limitations during the pendency of federal habeas petitions. Neither the “relation back” concept nor equitable tolling can rescue the present Petition from the bar of limitations. For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice. November 6,1998. NOTICE Reports and Recommendations are not ap-pealable to the Court of Appeals, but may be subject to the right of any party to file objections as" }, { "docid": "7472981", "title": "", "text": "Power” Sorce’s final argument seeking to avoid dismissal of his petition as untimely is that this court has the inherent power to consider the merits of the petition, notwithstanding the running of the AEDPA statute of limitations. While the court is not at all convinced that it possesses the power asserted, the court has reviewed the papers submitted on the merits of this claim and holds that, in any event, this would not be a proper case to ignore the statute of limitations. As noted, Sorce’s present arguments are based upon the notion that his co-defendant’s status as a government informant, was concealed from him until only recently. The 1992 state court record, however, is replete with references to the cooperation of Sorce’s co-defendant. Put simply, there are neither facts nor law present in this case that would convince this court to even consider whether the AEDPA statute of limitations should be ignored. Nor does the court find this case to be a proper situation to apply equitable tolling to the AEDPA statute of limitations. Equitable tolling applies only if “ ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999), quoting, Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997); see also Burgos v. Greiner, 1999 WL 551229 *3 (E.D.N.Y. June 21, 1999) (equitable tolling can be applied to AEDPA time period only if “party was prevented in some extraordinary way from exercising his rights”). The burden lays with petitioner to establish the entitlement to equitable tolling. Courts should “take seriously Congress’s desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted.” Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999), quoting, Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997). Petitioner has alleged no facts that would justify an equitable tolling of the AEDPA statute of limitations. CONCLUSION For the foregoing reasons, Sorce’s petition for a writ of habeas corpus is dismissed as time-barred. In view" }, { "docid": "7472982", "title": "", "text": "Equitable tolling applies only if “ ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999), quoting, Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997); see also Burgos v. Greiner, 1999 WL 551229 *3 (E.D.N.Y. June 21, 1999) (equitable tolling can be applied to AEDPA time period only if “party was prevented in some extraordinary way from exercising his rights”). The burden lays with petitioner to establish the entitlement to equitable tolling. Courts should “take seriously Congress’s desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted.” Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999), quoting, Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997). Petitioner has alleged no facts that would justify an equitable tolling of the AEDPA statute of limitations. CONCLUSION For the foregoing reasons, Sorce’s petition for a writ of habeas corpus is dismissed as time-barred. In view of the court’s ruling and consideration of all materials submitted both by Petitioner and his counsel, Sorce’s pro se motion to amend his petition is denied as moot. The Clerk of the Court is directed to close the file in this case. SO ORDERED" }, { "docid": "21261187", "title": "", "text": "of limitations. A state prisoner wishing to insure against any future application of limitations need only file an unexhausted petition in federal court at the earliest opportunity. Years or even decades later, the “relation back” concept then would rescue any otherwise untimely petition from the bar of limitations. Congress cannot have intended such result. G. Equitable Tolling The Ninth Circuit permits equitable tolling of the AEDPA statute of limitations “if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); but see United States v. Beggerly, — U.S. —,—, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998)(equitable tolling not permissible where the text of the statute of limitations defers the statute’s commencement until the plaintiff knew or should have known of the existence of the claim). Petitioner has not alleged, and this Court finds no indication, that extraordinary circumstances beyond Petitioner’s control made it impossible to file the present Petition on time. See Syms v. Chapman, 1997 WL 561313 *4 (S.D.Ga. August 19, 1997)(petition-er, whose previous federal petition had been denied without prejudice for failure to exhaust available state remedies, could not pursue subsequent habeas petition after allowing limitations period to run); United States v. Maldonado, 1997 WL 360932 *3 (E.D.Pa. June 26, 1997)(“[t]hat the defendant is not knowledgeable in the law is no excuse for failing to abide by the limitation period”); Bolds v. Newland, 1997 WL 732529 *2 (N.D.Cal. November 12, 1997)(“[e]quitable tolling is available only when extraordinary circumstances beyond a prisoner’s control make it impossible for him to file a petition on time____Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances”); cf. United States v. Flores, 981 F.2d 231, 236 (5th Cir.1993)(illiteracy, lack of training in the law, and failure “to appreciate the legal significance of facts” do not constitute “cause” for habeas petitioner’s failure to fulfill state law procedural requirement); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir.1992)(same); Worthen v." }, { "docid": "22226271", "title": "", "text": "sent to the Arizona prison facility. There is also much in dispute regarding other aspects of the Arizona prison law library. While Trent Axen, the Library Coordinator at the Oregon State Penitentiary, testified about an elaborate series of materials available at the library in Arizona, and about a correspondence system permitting prisoners to request materials not in Arizona, the affidavits submitted by the inmates in Arizona disagree with this on almost every level. Y Because we find that Roy and Kephart have made sufficient allegations regarding their diligence and the extraordinary circumstances they faced while at the Arizona prison, we remand to the district court for an evidentiary hearing on their equitable tolling claim. PETITION GRANTED AND REMANDED. . This court has found equitable tolling potentially warranted in several AEDPA cases, but has focused almost exclusively on whether the relevant \"extraordinary circumstances\" were present rather than whether the habeas petitioner had pursued their rights diligently. See Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir.2003); Spitsyn v. Moore, 345 F.3d 796 (9th Cir.2003); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir.2003); Corjasso v. Ayers, 278 F.3d 874 (9th Cir.2002); Jorss v. Gomez, 311 F.3d 1189 (9th Cir.2002); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000), Miles v. Prunty, 187 F.3d 1104 (9th Cir.1999); Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283 (9th Cir.1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc). . Of course, we do not hold that a federal Arizona prison facility must employ an Oregon-trained legal assistant, nor do we hold that the lack of such a legal assistant could alone satisfy the \"extraordinary circumstance1’ requirement for equitable tolling. Nevertheless, the fact that Roy timely filed a lawsuit alleging deficiencies in the Arizona facility is evidence of his diligence in trying to secure his rights. We leave for the district court to consider, after an evidentiary hearing, whether any lack of personnel or materials in the Arizona facility constituted a sufficiently \"extraordinary circumstance” such that Roy and Kephart could not timely file their petitions." }, { "docid": "8072385", "title": "", "text": "§ 2255 does not implicate exhaustion or other collateral proceedings. See Duncan, 533 U.S. at 178-80, 121 S.Ct. at 2127-29. Since the Court has upheld “the signal purpose[] animating AEDPA [a]s [being] the desire of Congress to achieve finality in criminal cases, both federal and state,” through strict interpretation of the one-year limitation period for federal prisoners in § 2255, we must be cautious in analyzing a § 2255 petitioner’s appellate issues not to “create a loophole which is contrary to the legislative intent of insuring a greater degree of finality.” Brackett v. United States, 270 F.3d 60, 69 (1st Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 1575, 152 L.Ed.2d 495 (2002). In the § 2255 context, equitable tolling “is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (per curiam); see Calderon v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir.1997) (“Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.”). “The ‘extraordinary circumstances’ standard applied in this circuit focuses on the circumstances surrounding the late filing of the habeas petition, rather than the circumstances surrounding the underlying conviction.” Helton, 259 F.3d at 1314-15. The petitioner has the burden of proving entitlement to equitable tolling by showing that “extraordinary circumstances that were both beyond his control and unavoidable even with diligence” prevented filing the petition on time. Akins, 204 F.3d at 1090; see Trenkler v. United States, 268 F.3d 16, 25 (1st Cir.2001) (stating that the § 2255 petitioner “bears the burden of establishing the basis for” equitable tolling); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618-19 (3d Cir.1998) (recognizing “that equitable tolling is proper only when the ‘principles of equity would make [the] rigid application [of a limitation period] unfair’ .... [and that a] petitioner must show that he or she ‘exercised reasonable diligence in investigating and" }, { "docid": "14207159", "title": "", "text": "of filing the first or second federal petition. The district court dismissed the third petition as time-barred. Smith appealed the dismissal of his third federal petition, and his appeal is now before us. II Smith argues that he is entitled to equitable tolling because the district court erroneously dismissed his mixed second petition without allowing Smith to strike the unexhausted claim. The opinion of the court agrees and holds that the district court’s improper dismissal of Smith’s second federal petition caused the untimely filing of his third federal petition. I disagree. A AEDPA imposes a one-year statute of limitations on the filing of all habeas corpus petitions. See 28 U.S.C. § 2244(d)(1). This rule “serves the well-recognized interest in the finality of state court judgments” and “reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.” Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). We are required to enforce AEDPA’s statute of limitations absent some legitimate reason to do otherwise. Equitable tolling may be considered under limited circumstances. Equitable tolling is permitted only “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation omitted). Equitable tolling is applied “sparingly,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and requires surmounting a “high hurdle.” Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997) overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998). Equitable tolling “will not be available in most cases.” Beeler, 128 F.3d at 1288. Equitable tolling is not even a possibility until a petitioner submits proof that external forces, and not a petitioner’s lack of diligence, accounted for the failure to file a timely petition. Miles, 187 F.3d at 1107. The equitable tolling inquiry measures both proximate cause and proportional relief principles. See Fail v. Hubbard, 315 F.3d" }, { "docid": "14207160", "title": "", "text": "of limitations absent some legitimate reason to do otherwise. Equitable tolling may be considered under limited circumstances. Equitable tolling is permitted only “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation omitted). Equitable tolling is applied “sparingly,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and requires surmounting a “high hurdle.” Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997) overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998). Equitable tolling “will not be available in most cases.” Beeler, 128 F.3d at 1288. Equitable tolling is not even a possibility until a petitioner submits proof that external forces, and not a petitioner’s lack of diligence, accounted for the failure to file a timely petition. Miles, 187 F.3d at 1107. The equitable tolling inquiry measures both proximate cause and proportional relief principles. See Fail v. Hubbard, 315 F.3d 1059, 1062 (9th Cir.2002) (holding that petitioner, who continued to press a petition with unexhausted claims that was eventually dismissed, was not entitled to equitable tolling because petitioner caused the untimeliness problem); Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir.2002) (holding that equitable tolling “is appropriate only during the delay caused by the extraordinary circumstances” and applying proportional relief principles). Smith seeks equitable tolling to sustain a determination that his third federal petition was timely filed. He has not shown that extraordinary circumstances beyond his control caused him to file the third petition late. The opinion of the court, in holding otherwise, fails to adhere to the causation and proportional relief principles required in equitable tolling cases. B No external forces caused Smith to make three attempts before filing a fully exhausted federal habeas petition. Smith bears sole responsibility for submitting the second of his mixed petitions. When Smith’s first petition was dismissed, the district court advised Smith which claims needed to be exhausted. Despite the aid of explicit instructions, Smith submitted only four" }, { "docid": "3358865", "title": "", "text": "session. Given the lack of any need for particularity, citation to the transcript was unnecessary in order to allege the grounds for federal habeas relief. It follows that the state court’s delay in furnishing the petitioner with the transcript did not establish a basis for equitable tolling. See Gassier v. Bruton, 255 F.3d 492, 495 (8th Cir.2001) (rejecting equitable tolling argument based on alleged delay in receipt of a transcript); Brown v. Cain, 112 F.Supp.2d 585, 587 (E.D.La. 2000) (holding transcript unnecessary to prepare habeas petition); Fadayiro v. United States, 30 F.Supp.2d 772, 779-80 (D.N.J.1998) (holding delay in receiving transcripts not sufficiently extraordinary to justify application of equitable tolling); United States v. Van Poyck, 980 F.Supp. 1108, 1110-11 (C.D.Cal.1997) (holding delay in receipt of transcript not an “extraordinary circumstance! ]” sufficient to justify equitable tolling). We need not cite book and verse in connection with the district court’s finding. What matters is that the court painstakingly weighed and analyzed the totality of the circumstances (including the “delayed transcript” claim) and reached a rational— though not inevitable — conclusion. Given the court’s detailed explanation, there is no principled way in which we can disturb its considered refusal to apply the doctrine of equitable tolling to resurrect the petitioner’s time-barred habeas application. Cf. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (explaining that equitable tolling “do[es] not extend to what is at best a garden variety claim of excusable neglect”). If more were needed — and we doubt that it is — the district court also found that the petitioner had received his copy of the evidentiary hearing transcript no later than July 24, 2000. At that point, he had more than seven weeks left in the limitation period within which to prepare and file his federal habeas application. We agree with the lower court that the petitioner has not adequately shown why that interval was insufficient to permit timely filing. The petitioner’s assertion that his pro se status somehow entitles him to equitable tolling is wide of the mark. While pro se" }, { "docid": "23355293", "title": "", "text": "than 18 months after AEDPA’s one-year statute of limitations expired, it is timely only if Corjasso is entitled to equitable tolling. AEDPA’s statute of limitations provision is subject to equitable tolling. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled in part on other grounds by Calderon v. United States Dist. Court, (Kelly), 163 F.3d 530 (9th Cir.1998). Equitable tolling is “unavailable in most cases,” Miles, 187 F.3d at 1107, and is appropriate only “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Beeler, 128 F.3d at 1288. See also Allen v. Lewis, 255 F.3d 798, 800 (9th Cir.2001). In spite of the “high hurdle” to the application of equitable tolling, Beeler, 128 F.3d at 1289, we have found equitable tolling of AEDPA’s statute of limitations appropriate in a number of circumstances. In Miles, the petitioner, an incarcerated pro se litigant, timely requested that prison officials draw on his trust account and prepare a check for his filing fee. We equitably tolled the statute because prison officials delayed the request, causing the petitioner to miss the filing deadline. See Miles, 187 F.3d at 1107. In Beeler, we equitably tolled the statute where the capital defendant’s lead counsel withdrew after accepting employment in another state. See Beeler, 128 F.3d at 1289. In Kelly, we applied equitable tolling because the petitioner’s alleged mental incompetency, “a condition that is, obviously, an extraordinary circumstance beyond the prisoner’s control,” rendered him “unable to assist his attorney in the preparation of a habeas petition.” Kelly, 163 F.3d at 541. Here, Corjasso, proceeding pro se, filed his first federal habeas petition in the proper district court on December 13, 1996, 149 days after his conviction became final. Corjasso’s petition was defective (if it was defective at all; see E.D. Cal. Local R. 3-200) only in that he used white-out and a pen on his cover sheet to write the correct name of the court in which he filed. Because Corjasso was a pro se petitioner, the district court erred in rejecting his petition on" } ]

[ { "docid": "6551076", "title": "", "text": "also regulates the time and temperature of-roasting to properly-oxidize the metallic constituents of the ore. The patent to Lee et al. (appellants) relates to a process for extracting silver from ores, concentrates, or other materials. With respect to the disclosure of this patent, the examiner in his statement said: The claims allowed to applicants in this patent are directed to the same essential combination of steps; namely, the calcination of a sulfide ore containing silver and copper in order to convert the silver to the sulfate and the associated constituents to their higher oxide forms and the subsequent leaching of such calcine in an acid, solution containing an oxidizing agent, the agent being maintained in amount sufficient to hold both the solids and dissolved salts in their higher oxide states (cf. claims S and 4). The dissolved silver is also recovered by precipitation as spbnge (claim 6). Claims 20 and 24 are very broad and merely embrace leaching the copper-silver ore with an acidified solution containing an oxidizing - -agent and* maintaining-the'oxidiziiig-agent to hold both the-solids-and dissolved salts in their higher states of oxidization. These claims were rejected by the examiner on Smith et al. alone. The Board of Appeals approved this ground of rejection and in its decision pointed out in detail the various steps disclosed by Smith et al. corresponding to the process set forth in claims 2'0 and 24. It seems to us that it is too clear for argument that these claims are fairly anticipated by Smith et al. Claims 18 and 19 are similar to claims 20 and 24 except that they include the preliminary step of calcination. They were rejected by the examiner upon Smith et al. in view of the patent to Hybinette. Appellants do not dispute that Hybinette discloses the step of calcining copper ores. With respect to these claims the Board of Appeals* in its decision, stated: Claims 18 and 19 refer to the preliminary step of calcination. It is regarded as merely conventional in tbe metallurgy of silver and copper to preliminarily roast sulphide ores to convert tbe metals into" } ]

[ { "docid": "15077990", "title": "", "text": "PAULINE NEWMAN, Circuit Judge. This case was remanded by the Supreme Court for further consideration in light of the Court’s decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944, 62 USPQ2d 1705 (2002). The vacated decision, Talbert Fuel Systems Patents Co. v. Unocal Corp., 275 F.3d 1371, 1376-78, 61 USPQ2d 1363, 1366-68 (Fed.Cir.2002), had affirmed the judgment of the United States District Court for the Central District of California, holding that (1) the claims of Talbert’s United States Patent No. 5,015,356 (the '356 patent) are limited to a hydrocarbon fuel with a high-end boiling point of 345°F, (2) prosecution history estoppel precludes infringement under the doctrine of equivalents, and (3) Talbert’s '356 patent and Unocal’s Patent No. 5,288,-393 are not interfering patents. In Tal-bert this court had relied on the absolute bar established in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 56 USPQ2d 1865 (Fed.Cir.2000) (en banc), to deny Talbert access to the doctrine of equivalents. The Supreme Court’s vacatur of that decision led to this GVR. We now return to this case in light of this court’s recent decision interpreting and applying the Court’s Festo decision. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359 (Fed.Cir.2003) (en banc). I The issue of infringement of Talbert’s '356 patent is focused on the limitation of all of the claims to a gasoline boiling point range of 121°F-345°F, as in claim 1: 1. A low Reid Vapor Pressure liquid gasoline for use in a standard carburet-ed internal combustion engine; said gasoline comprising a priming agent and a hydrocarbon mixture having an intermediate carbon range relative to C4-Ci2 fuel; said intermediate carbon range consisting essentially of C6-C10 hydrocarbons with C9 and C10 paraffinic hydrocarbons being present in the mixture; said gasoline having a boiling point range of 121°F-345°F at 1 atmosphere pressure.... (Emphasis added.) The accused Unocal fuels were stated at trial to have boiling range endpoints of from 373.8°F to 472.9°F. Talbert again argues for literal infringement, stating that the 345°F upper limit in the" }, { "docid": "17434301", "title": "", "text": "Garrett, Presiding Judge, delivered the opinion of the court: All four of the claims, Nos. 1, 3, 4 and 5, in appellant’s application for a patent relating to a process for the production of cyclopropane-were rejected by the Primary Examiner of the United States Patent Office and the examiner’s decision was affirmed by the Board of Appeals. From the board’s decision appellant appeals here. Claim 1 is a generic claim and reads as follows: 1. The method of making hydrocarbons-, having the general formula OnH2n-which includes the steps of treating a substituted alkane containing three or more carbon atoms and two different halogens selected from the group consisting-of chlorine, bromine and iodine by mixing such alkane with zinc dust in suspension in a medium consisting of water while maintaining said medium at a temperature between about 70° 0. and about the boiling point of said medium, and collecting the resulting hydrocarbon of the formula CnH™. The references relied upon are: Hass et al., 2,235,679, March 18, 1941. Gustavson, Jour, fur Praktische Chemie, Yol. 144, New Series Yol. 36,. pp. 300-303. Published in 1887. Domanitzki, Chemisehes Zentralblatt, Yol. 2, page 313, Berlin, 1916. Claim T*was rejected as not defining invention over Hass et al. in view of Gustavson. Claim 1, together with claims 3 and 4, was also rejected as lacking invention over Gustavson in view of Domanitzki. Other grounds of rejection were made which we need not consider here. Claim 5 was rejected as not reading upon the elected species in the absence of an allowable generic claim; in view of our conclusion herein it is not necessary to further consider this claim. Claims 3 and 4 are narrower than claim bin that they are limited to the use of l-bromo-3-chloropropane as the starting material. Gustavson discloses the making of cyclopropane by the following reaction: In this reaction the zinc is in the form of a powder and may be dispersed in either alcohol or water. Gustavson’s starting material is slightly different from that used by appellant, but Domanitzki discloses the same starting material. . The board pointed out the" }, { "docid": "6551363", "title": "", "text": "if the number of thermally stable cations per unit cell is 10 or less from admixture of the same with non-straight chain hydrocarbons. 6. A solid crystalline aluminosilicate according to claim 1, wherein the tetramethylammonium ion is substantially replaced by hydrogen. Claims 1-4, 6, and 7 directed specifically to the zeolite composition stand allowed. (2) The second aspect of appellant’s invention is the method for making ZK-22, and the Patent Office has also allowed claims in this application directed thereto. (3) What appellant describes as the third aspect of his discovery is the subject matter of this appeal: claims 11, 12, and 13, directed to a hydrocarbon conversion process which involves the use of appellant’s novel zeolite as a catalyst to crack hydrocarbons. Appealed claim 11 reads: 11. A hydrocarbon conversion process which comprises contacting a hydrocarbon charge under catalytic cracking conditions with the composition of claim 6. Claims 12 and 13 also call for cracking of hydrocarbons with the new zeolite catalyst material, differing only in the specific form of the zeolite catalyst employed. Instead of cracking being performed with the catalyst in a hydrogen form pursuant to claim 11, cracking according to claims 12 and 13 is performed with the catalyst in the rare earth metal form. Claims 12 and 13 are also both dependent upon allowed claims to the zeolite composition in this application. Appellant concedes that claims 12 and 13 stand or fall with our disposition of claim 11. The Rejection and the Issues The sole rejection of the appealed claims is for obviousness under 35 U.S.C. § 103 in view of a single reference, Frilette patent No. 3,033,778, issued May 8, 1962, which discloses the cracking of hydrocarbons using crystalline aluminosilicate zeolite catalysts which are similar to but patentably different from ZK-22 zeolite. Appellant admits that his zeolite is “useful in the cracking of hydrocarbons employing generally the same temperatures, liquid hourly space velocity and ratio of catalyst to hydrocarbon charge” taught by Frilette. The examiner rejected the appealed claims “as the obvious use of the catalyst for the conversion of hydrocarbons.” In his Answer," }, { "docid": "15077997", "title": "", "text": "that was added to the claims does not raise an estoppel to reaching the equivalent Unocal standard carbureted fuels that contain CX1 hydrocarbons and boil above 345°F. Talbert requests remand to the district court in order to provide evidence that persons of skill in the gasoline fractionating art would know that a hydrocarbon fuel described by its carbon number, such as C6 to C10, when distilled will contain some Cn hydrocarbons that boil above 345°F. Talbert states that the 345°F limit does not describe the actual composition that is distilled, and would be so recognized. Talbert argues that this evidence would also show that Talbert did not disclaim coverage of gasolines having an endpoint higher than 345°F. Talbert’s patent was prosecuted before Festo was decided by the Supreme Court, and on GVR the patentee may provide evidence not previously relevant. However, in this case the proffered evidence, viewed favorably to Talbert, does not overcome the clarity of the disclaimer of fuels boiling in the range of the Hamilton reference, viz., from 80 F up to the endpoint range of 390°F — 420°F. Nor can Talbert avoid the teaching in the '356 specification that standard carbureted fuel is the same as gasifier fuel “except for the presence of a small amount of priming agent” in the carbureted fuel. Col. 9, lines 19-23. Talbert has not suggested that persons reading the specification would recognize that statement as incorrect or as affecting the boiling point range of the claimed Talbert fuels. We conclude that the amendment of the Talbert claims to a boiling point upper limit of 345°F, in light of the Hamilton reference showing gasolines with boiling endpoints of 390°F-420°F, is a presumptive surrender of gasolines boiling in the range between Talbert’s amended endpoint of 345°F and Hamilton’s endpoints. See Festo, 535 U.S. at 740-41, 122 S.Ct. 1831, 152 L.Ed.2d 944, 62 USPQ2d at 1714. In Festo the Court established the grounds of rebuttal of the presumption of surrender arising from a narrowing amendment, the Court stating that “[t]he patentee must show that at the time of the amendment one skilled in" }, { "docid": "15077994", "title": "", "text": "correctly construed to include fuels with endpoints of 373°F and higher. We therefore affirm the district court’s ruling that the claims are not literally infringed. II Infringement by application of the doctrine of equivalents was the basis of the GVR. Talbert requests remand to the district court for retrial in view of the Court’s change in the law. Unocal responds that prosecution history estoppel, as established by the Court’s Festo decision, bars Talbert’s attempt to reach the Unocal fuels, and that remand is inappropriate. In Festo the Court applied the principles of prosecution history estoppel to claims that had been narrowed by amendment, reaffirming that estoppel “hold[s] the inventor to the representations made during the application process and to the inferences that may reasonably be drawn from the amendment.” Festo, 535 U.S. at 737-38, 122 S.Ct. 1831, 152 L.Ed.2d 944, 62 USPQ2d at 1712. The prosecution history of the '356 patent shows narrowing amendments directed to the hydrocarbon content and boiling range of the fuel. Talbert’s claims, as initially filed, contained no temperature range: 1. A gasoline fuel comprising hydrocarbons having an intermediate carbon range relative to gasoline which has a carbon range of C4-C12; said intermediate range being defined as the portion remaining when C4-C12 gasoline has removed therefrom an effective amount of lower weight volatile components to substantially eliminate evaporative loss and explosion potential and an effective amount of higher weight to raise the burn rate of the remaining hydrocarbons to a level comparable to C4-C12 gasoline. The claims were rejected on references that showed gasoline of various hydrocarbon contents and boiling ranges, including the Hamilton reference which showed an upper boiling limit in the range of 390°F— 420°F. Talbert argued to the examiner that there is no disclosure in Hamilton which suggests the removal of lighter and heavier hydrocarbons from a gasoline type fuel to produce a fuel consisting essentially of hydrocarbons in the range of C5 — C40 having the boiling range set forth in the claims. In fact, Hamilton teaches away from such a fuel by providing for a fraction having a boiling range up" }, { "docid": "17071319", "title": "", "text": "LeNkoot, Judge, delivered the opinion of the court: This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming a decision of the examiner rejecting claims numbered 1 to 4, inclusive, of appellant’s application for patent as aggregative. Originally there were five claims involved, all of which were rejected as aggregative and also upon the ground that they lacked patentability over certain patents cited by the examiner. The Board of Appeals reversed the examiner with respect to claim 5, holding that it was not aggregative, and as to all of the claims it disagreed with the examiner in his holding that they lacked patentability over the cited prior art. If affirmed the examiner, however, as above stated, as to the claims here involved being aggregative, and that is the only issue before us upon this appeal. Claim 1 is illustrative of the claims before us and reads as follows; 1. In the manufacture of motor fuel gasoline, the improvement which comprises heating a stream of higher boiling petroleum oil to a moderate cracking temperature under a substantial superatmospheric pressure and subjecting said higher boiling oil to said moderate cracking temperature for a period of time sufficient to effect moderate cracking of said higher boiling oil, separating the composite hot oil products of this heating operation into a vapor stream and a liquid stream and separately heating each of said separated streams to high cracking temperatures under maintained superatmospheric pressure, reducing the pressure on the composite hot oil products of each of these heating operations and simultaneously cooling them to temperatures at which substantial cracking ceases, separating the expanded and cooled products into tar fractions and vapor fractions and recovering gasoline fractions from these vapor fractions. The alleged invention is concisely described by the Board of Appeals in its decision as follows: The disclosure relates to a process of heating higher boiling petroleum oil to a moderate cracking temperature under substantial pressure, separating the oil products from this step into a vapor stream and a liquid stream and separately heating the vapor stream" }, { "docid": "18916377", "title": "", "text": "Hatfield, Judge, delivered the opinion of the court: This is an appeal from the decision of the Board of- Appeals- of the United States Patent Office affirming the decision of the Primary Examiner rejecting all of the claims, Nos. 1 to 7, inclusive, 9, and 10, in appellant’s application for a patent for an alleged invention for a process relating to the alkylation of isoparaffinic hydrocarbons with olefinic hydrocarbons. ■ Claim 1 is sufficiently illustrative of appealed claims 3, and 5, 6, 9, and 10. Claim 2 is representative of appealed claims 4 and 7. Claims 1 and 2 read: ' • 1. In the process of alkylating an isoparaffin with an olefin to form high antiknock motor fuel in the presence of an alkylation catalyst wherein the isoparaf- fin is present in excess of that required to react with the olefin and wherein unreactive hydrocarbons lower boiling than the isoparaffin are also present, the improvement which comprises subjecting the hydrocarbon effluent from the alkylation zone consisting of alkylate and unreacted hydrocarbons to a prefraetionation to separate the lower boiling unreactive hydrocarbons and a portion only of the excess isoparaffin as overhead therefrom and to concentrate the lower boiling hydrocarbons in an overhead stream, passing such overhead stream to a zone independent of the zone of said prefraetionation and there frationating such overhead alone under fractionating conditions independent of fractionating conditions within the prefraetionation zone to separate the un-reactive lower boiling hydrocarbons from the unreacted isoparaffin contained therein, eliminating the separated lower boiling hydrocarbons from the system, recycling the recovered isoparaffin to the alkylation zone to maintain the excess of isoparaffin therein, and fractionating the alkylate to recover a high antiknock motor fuel. 2. The process of alkylating an isoparaffin with a normally gaseous olefin to form high antiknock motor fuel, which comprises fractionating a feed stock containing the isoparaffin and unreactive hydrocarbons both higher boiling and lower boiling then the isoparaffin to separate the isoparaffin and the lower boiling hydrocarbons as overhead therefrom, contacting the isoparaffin overhead with the normally gaseous olefin in the presence of an alkylation catalyst" }, { "docid": "14376856", "title": "", "text": "LEVENTHAL, Circuit Judge. This is an appeal from the dismissal of an action pursuant to 35 U.S.C. § 145 for a judgment that appellants are entitled to a patent for a “gasoline composition,” a knock-resistant fuel for automobiles. The corporate appellant, the research subsidiary of Standard Oil Company of California, is the employer and assignee of the individual appellants, Barusch et al., who on September 26, 1958, filed application for patent, Serial No. 765,920. Claim 6, the only claim at issue, is for a fuel having two principal ingredients: first, a hydrocarbon base fuel, of specified characteristics, notably high in aromatic hydrocarbons (at least 20%) and having a clear research octane number (i. e. before any additive) of above 90; and second, an additive of from 1 to 4 milliliters (ml) of tetramethyl lead (TML) per gallon. The claim sets forth that the addition of TML to the specified base fuel produces a motor method octane number and an average road octane number greater than that obtained by adding an equivalent amount of lead in the form of tetra-ethyl lead (TEL). The Board of Appeals of the Patent Office affirmed the Examiner’s rejection of the claim on the ground that the disclosures in the 1958 Hinkamp patent, #2,855,905, while not constituting anticipation, suffice to show that the claimed invention was obvious to those skilled in the art, within the meaning of 35 U.S.C. § 103. The District Court dismissed the complaint, also relying on the Hinkamp patent, but on a somewhat different basis from that set forth by the Board, as will appear. A motion to open the judgment to take additional testimony was denied. We remand for the purpose of taking additional evidence. 1. We sketch first the nature of the trial as it took shape on the issue of obviousness. This will be useful in focusing subsequent discussion of certain procedural matters. Also, appellants have asked us to determine that the evidence as a whole, under tests judicially approved, shows the claim is not obvious. Appellants’ evidence, much of it undisputed, related the historical efforts to combat “knock,”" }, { "docid": "15077993", "title": "", "text": "that the 345°F limit is “nothing more than a recognition that the highest boiling C10 hydrocarbon (i.e., paraffinic decane) must be present in the claimed composition” and that the claims, correctly construed, do not exclude the presence of higher boilers in relatively small amounts. In construing the claims, even accepting Talbert’s view that gasoline fractionation does not readily achieve or require an exact endpoint, the prosecution history does not permit a claim scope that departs ■significantly from the stated temperature range. The temperature limit was placed in the claims at the examiner’s insistence, to distinguish prior art that included a Hamilton reference that showed hydrocarbon fuels with an endpoint “within the range of about 390°F and about 420°F.” Talbert had argued to the examiner that “the temperature range of the boiling points of the hydrocarbons of the gasoline of the presently claimed invention is between 96.8°F and 345°F.” To gain allowance, Talbert was required to place the temperature restriction in the claims. Talbert presented no reasonable explanation of how his designated endpoint of 345°F is correctly construed to include fuels with endpoints of 373°F and higher. We therefore affirm the district court’s ruling that the claims are not literally infringed. II Infringement by application of the doctrine of equivalents was the basis of the GVR. Talbert requests remand to the district court for retrial in view of the Court’s change in the law. Unocal responds that prosecution history estoppel, as established by the Court’s Festo decision, bars Talbert’s attempt to reach the Unocal fuels, and that remand is inappropriate. In Festo the Court applied the principles of prosecution history estoppel to claims that had been narrowed by amendment, reaffirming that estoppel “hold[s] the inventor to the representations made during the application process and to the inferences that may reasonably be drawn from the amendment.” Festo, 535 U.S. at 737-38, 122 S.Ct. 1831, 152 L.Ed.2d 944, 62 USPQ2d at 1712. The prosecution history of the '356 patent shows narrowing amendments directed to the hydrocarbon content and boiling range of the fuel. Talbert’s claims, as initially filed, contained no temperature range: 1." }, { "docid": "12348932", "title": "", "text": "DAVIS, Circuit Judge. These suits were brought against the Root Refining Company by the Universal Oil Products Company, hereinafter called plaintiff, for the infringement of all the nine claims, except the sixth, of United States letters patent No. 1,392,629 issued to Carbon P. Dubbs, October 4, 1921, and by him assigned to the plaintiff, and all five claims of United States letters patent No. 1,537,593 issued to Gustav Egloif, May 12, 1925. Each patent is for a process lor the manufacture of gasoline from petroleum. The Root Refining Company defended on the ground that both patents were invalid; the Dubbs patent for lack of disclosure and the Egloff patent for lack of utility, and both for lack of novelty over the prior art. All the claims in issue were held to he valid and infringed by the learned District Judge. The two suits were consolidated for trial and will be disposed of in a single opinion here as they were below. The Root Refining Company, hereinafter called defendant, is a Delaware corporation, and the plaintiff is a corporation of South Dakota. Both patents relate to improvements in the process of cracking petroleum for making gasoline. Petroleum in its natural state, as it comes from the earth, is made up of many combinations of hydrogen and carbon. The natural constituents of these combinations are classified according to their specific gravity or boiling points. Cracking involves the decomposition of these complex hydrocarbon molecules of petroleum by the application of heat and pressure. It breaks up the heavier constituent elements and converts them into lighter oils such as incondensable gases, gasoline, kerosene, gas oil, and fuel oil. As the heavy hydrocarbon compounds composing the oil to be refined are broken down, new ones are formed. Some of these contain a great number of valuable hydrogen elements while others contain more carbon compounds which have little or no value. Cracking, as distinguished from distillation, which involves the mere physical separation of the elements of the oil, involves a chemical reaction. This is produced by the application of intense heat, 700° to 850° F. and" }, { "docid": "15077995", "title": "", "text": "A gasoline fuel comprising hydrocarbons having an intermediate carbon range relative to gasoline which has a carbon range of C4-C12; said intermediate range being defined as the portion remaining when C4-C12 gasoline has removed therefrom an effective amount of lower weight volatile components to substantially eliminate evaporative loss and explosion potential and an effective amount of higher weight to raise the burn rate of the remaining hydrocarbons to a level comparable to C4-C12 gasoline. The claims were rejected on references that showed gasoline of various hydrocarbon contents and boiling ranges, including the Hamilton reference which showed an upper boiling limit in the range of 390°F— 420°F. Talbert argued to the examiner that there is no disclosure in Hamilton which suggests the removal of lighter and heavier hydrocarbons from a gasoline type fuel to produce a fuel consisting essentially of hydrocarbons in the range of C5 — C40 having the boiling range set forth in the claims. In fact, Hamilton teaches away from such a fuel by providing for a fraction having a boiling range up to 390°F (column 1, lines 42-43). This fraction is not the same as, nor equivalent to, that which is the subject of applicant’s composition claims. Talbert then limited the claims to up to C10 hydrocarbons, and at the examiner’s insistence added a boiling range of 121°F-345°F. The district court concluded that hydrocarbons boiling above 345°F were disclaimed by Talbert in order to obtain the patent, and imposed an estoppel commensurate with this conclusion. Talbert argues that the temperature limit was placed in the claims to distinguish the Hamilton reference and applied only to gasifier applications, and not to the standard carbureted fuel to which the '356 claims are directed. Talbert argues that “citation of [the gasifier fuels’] prosecution history is irrelevant” because the two types of fuels are very different, stating: “Although the substantial elimination of the higher-boiling Cn+ hydrocarbons is important for gasoline requiring a gasifier, those physical properties are not required of standard gasolines, which contain primers to help provide adequate front-end volatility to start engines.” Thus Talbert argues that the 345°F limit" }, { "docid": "15077991", "title": "", "text": "that decision led to this GVR. We now return to this case in light of this court’s recent decision interpreting and applying the Court’s Festo decision. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359 (Fed.Cir.2003) (en banc). I The issue of infringement of Talbert’s '356 patent is focused on the limitation of all of the claims to a gasoline boiling point range of 121°F-345°F, as in claim 1: 1. A low Reid Vapor Pressure liquid gasoline for use in a standard carburet-ed internal combustion engine; said gasoline comprising a priming agent and a hydrocarbon mixture having an intermediate carbon range relative to C4-Ci2 fuel; said intermediate carbon range consisting essentially of C6-C10 hydrocarbons with C9 and C10 paraffinic hydrocarbons being present in the mixture; said gasoline having a boiling point range of 121°F-345°F at 1 atmosphere pressure.... (Emphasis added.) The accused Unocal fuels were stated at trial to have boiling range endpoints of from 373.8°F to 472.9°F. Talbert again argues for literal infringement, stating that the 345°F upper limit in the claims was included “only to confirm the gasoline’s predominant C6-C10 composition and to establish cut ranges for the fuel’s gasifier form.” Talbert states that “[t]o interpret that temperature range as a restriction or requirement regarding the presence of all the low- or high-end components contradicts the reality of accepted refinery practice and renders the claim meaningless.” Talbert points out that the specification recognizes and teaches that small amounts of hydrocarbons outside the claimed C6-C10 range may remain due to the imprecision of fractionation: [The preferred intermediate range C6-C10 gasoline] ... can be made by removing the volatile and heavy components so that the remaining hydrocarbon mixture will boil within a range of about 121°F-345°F at one atmosphere. Such a boiling point range encompasses the boiling point of the lowest boiling C6 component and the highest boiling C10 component. Of course, it is possible that a small amount of C4, C5, Cu and C12 may remain after the separation process due to imperfections of gasoline fractionation procedures. ’356 patent, col. 7, lines 39-48. Thus Tal-bert argues" }, { "docid": "17353706", "title": "", "text": "Worley, Chief Judge, delivered the opinion of the court: The sole issue here is whether the Board of Appeals committed reversible error in sustaining the examiner’s rejection of claims 1, 2, 15, 20, 21 and 23 as unpatentable over Bousquet under 35 USC 103. The invention relates to certain morpholides of fatty acids which, the specification states, exhibit antimicrobial activity against a variety of microorganisms such as bacteria, yeast and molds. Claim 23 is illustrative: 23. A member selected from the group consisting of 4-(6-hydroxycaproyl) mor-pholine, 4-deeanoyl-2, 6-dimethylmorpholine, 4-cleoyl-2, 6-dimethylmorpholine, 4-petroseIinoyImorpholine, and the morpholides of parsley seed oil fatty acids. The remaining claims are directed to each of the amides of morpho-line and particular fatty acids recited in claim 23. Bousquet discloses various carboxylic acid amides “having a hetero-cyclic radical and an aliphatic hydrocarbon radical of at least six carbon atoms” which are useful as insecticides and “have remarkably high toxicity toward lower forms of life.” Typically, morpholine is the “heterocyclic radical” and various long chain fatty acids provide the “aliphatic hydrocarbon radical.” Among the many morpholides specifically mentioned by Bousquet, the examiner drew attention to the disclosure of morpholides of china-wood and soya bean oil acids, 4-ricinoleyl morpholine, 4-(12-hydroxystearyl) morpholine, and 4-(10, 11-undecylenoyl) morpholine. He particularly relied on Bousquet’s disclosure of 4-n-dodecanoylmorpholine and 4-oleylmorpholine, describing the former as a homolog of the compound of claim 2 and the latter as a homolog and isomer of the compounds of claims 15 and 20, respectively. Said the board: ⅜ * ⅜ compounds claimed are so closely related to the compounds disclosed by the reference that they are structurally obvious therefrom. Appellants point out that the reference only asserts insecticidal properties for the compounds disclosed therein, whereas in this application a novel property is attributed to the products claimed, that is, they are antimicrobial. Appellants cite a considerable number of decisions to support their view that a novel property for a compound renders the compound unobvious and, therefore, patentable. However, as pointed out by the Examiner in his Answer “On Remand,” the present specification in Table I shows that the prior art" }, { "docid": "22248065", "title": "", "text": "clear exactly which of the several requirements of § 112 are thought not to have been met. Is the claim unclear or is the specification’s disclosure inadequate to support it As to the merits of the conclusions and reasons upon which the examiner based this rejection, we do not agree either that claims 7-10 are rendered “unduly broad” or “indefinite” by the term “hydrocarbon” or that a “representative example for the various types of hydrocarbons” is needed. As appellants point out, claims 7-10 are limited to hydrocarbons which are in the vapor phase at the reaction temperature and thus do not call for just any hydrocarbon. Moreover, there is no magical relation between the number of representative examples and the breadth of the claims; the number and variety of examples are irrelevant if the disclosure is “enabling” and sets forth the “best mode contemplated.” The board did not expressly accept or reject the examiner’s reasons for separately rejecting claims 7-10 under § 112, second paragraph. Instead, the board “affirmed” this rejection while observing for the first time that although appellants’ specification suggests that the hydrocarbon used in their process must be one which, upon being f errichlori-nated, will yield a chlormated product maintamoMe in vapor phase at the reaction temperature, claims 7-10 contain no corresponding limitation. On this point the board said: The requirement that the product be a vapor is obviously an important one because we find no description in the specification of how the liquid and solid products and by-products are to be removed from the chlorination vessel. [Emphasis added.] Although this statement relates only to alleged deficiencies of the specification and although, as pointed out above, such deficiencies give rise to rejections under the first and not the second paragraph of § 112, appellants have not complained that they were misled by this confusion nor do they dispute that claim (and claims 8-10 by dependence) should contain the additional limitation. Neither have appellants sought to have the board denominate the raising of this issue a new ground of rejection under Eule 196(b). Accordingly, we are constrained to" }, { "docid": "6551366", "title": "", "text": "upon the premise that the use claims need be patentable over the composition claims,” and that the board’s approach necessarily treats appellant’s own disclosure as “prior art” under 35 U.S.C. § 103, which it is not. Appellant contends further that he is entitled to claims directed to the process of using his ZK-22 zeolite, because the Patent Office found that zeolite to be new and unobvious, the hydrocarbon conversion process claims being just another method of expressing, with reasonable latitude, what appellant regards as his invention. Appellant’s position here is that the claims to the process of using the new and unobvious catalyst are necessarily directed to unobvious subject matter under 35 U.S.C. § 103 and therefore allowable. Appellant’s brief states: Where, as here, the crystalline aluminosilicate is itself unobvious, its use in catalysis is likewise unobvious. The Board’of Appeals has not in this case asserted obviousness of the catalyst recited in the claims, although this constitutes the sole novelty of the claimed process. Allowance by the Patent Office of all claims in this application to the crystalline aluminosilicate as a new composition of matter is tantamount to a finding [that] the catalyst is unobvious. The solicitor supports the view that the process invention is obvious in view of the teachings of Frilette since appellant has shown no unexpected result with the use of ZK-22 to crack hydrocarbons. He reasons as follows: Appellant’s allowed claims 6 and 7 specify a shape-selective zeolite catalyst. His specification describes a zeolite having a three-dimensional network structure and states that it has a crystal structure similar .to zeolite A. The A zeolites are pointed out by Frilette as members of the class of zeolites which, by virtue of their crystalline structure, are useful as catalysts for cracking hydrocarbons. In the light of what is disclosed by Frilette, appellant’s zeolite obviously is analogous to the known zeolites of that class. One skilled in the art therefore would expect it to have the same catalytic effect that the known zeolites have. Further, as pointed out by the Board * * * there is no evidence of" }, { "docid": "12386149", "title": "", "text": "the eight claims rejected by the examiner. Appellants opposed the addition of those counts upon the ground that they were not supported by appellee’s disclosure. Appellants also moved to dissolve the interference' upon the ground that appellee’s sjoecifically disclosed catalysts are inoperative. The Primary Examiner granted appellants’ motion to dissolve the interference, and denied appellee’s motion to amend, holding that appellee was not entitled to make any of the claims of appellants’ patent. Upon appeal the Board of Appeals reversed in part this decision of the Primary Examiner, holding that appellee’s application supported claims 1, 2, 3, 4, 9, 10, 11, and 12 of appellants’ patent copied by appellee. The interference was thereafter redeclared with the eight counts now before us, counts 1 to 4, inclusive, being counts of the original interference, and counts 5 to 8, inclusive, being counts added by appellee’s amendments allowed by the Board of Appeals. Counts 2 and 5 are illustrative of the counts in issue and read as follows: 2. The process for producing aromatic hydroxy-compounds comprising the treatment of a ring-chlorinated aromatic hydrocarbon with steam at temperatures exceeding 350° C. in the presence of a neutral phosphoric acid compound ■of an alkaline earth metal as a catalyst. 5. The process for producing aromatic hydroxy-compounds comprising the treatment of a ring-chlorinated aromatic hydrocarbon with steam at temperatures exceeding ,350° O. in the presence of triealcium phosphate as a catalyst. The subject matter of the issue is concisely defined in appellants’ brief as follows: The interference relates to the manufacture of phenol or other aromatic •hydroxy compounds by the treatment of chlorobenzene or other ring chlorinated aromatic hydrocarbons with steam, in the presence of a catalyst. The process is •carried out under such conditions that the different compounds taking part in the reaction are in a vapor state, or are in the form of gases. This broad concept as set forth is well known. The novelty claimed in the Prahl and Mathes patent resides in the discovery of a particular catalyst capable of producing a higher yield in the process than any heretofore known. The" }, { "docid": "15077992", "title": "", "text": "claims was included “only to confirm the gasoline’s predominant C6-C10 composition and to establish cut ranges for the fuel’s gasifier form.” Talbert states that “[t]o interpret that temperature range as a restriction or requirement regarding the presence of all the low- or high-end components contradicts the reality of accepted refinery practice and renders the claim meaningless.” Talbert points out that the specification recognizes and teaches that small amounts of hydrocarbons outside the claimed C6-C10 range may remain due to the imprecision of fractionation: [The preferred intermediate range C6-C10 gasoline] ... can be made by removing the volatile and heavy components so that the remaining hydrocarbon mixture will boil within a range of about 121°F-345°F at one atmosphere. Such a boiling point range encompasses the boiling point of the lowest boiling C6 component and the highest boiling C10 component. Of course, it is possible that a small amount of C4, C5, Cu and C12 may remain after the separation process due to imperfections of gasoline fractionation procedures. ’356 patent, col. 7, lines 39-48. Thus Tal-bert argues that the 345°F limit is “nothing more than a recognition that the highest boiling C10 hydrocarbon (i.e., paraffinic decane) must be present in the claimed composition” and that the claims, correctly construed, do not exclude the presence of higher boilers in relatively small amounts. In construing the claims, even accepting Talbert’s view that gasoline fractionation does not readily achieve or require an exact endpoint, the prosecution history does not permit a claim scope that departs ■significantly from the stated temperature range. The temperature limit was placed in the claims at the examiner’s insistence, to distinguish prior art that included a Hamilton reference that showed hydrocarbon fuels with an endpoint “within the range of about 390°F and about 420°F.” Talbert had argued to the examiner that “the temperature range of the boiling points of the hydrocarbons of the gasoline of the presently claimed invention is between 96.8°F and 345°F.” To gain allowance, Talbert was required to place the temperature restriction in the claims. Talbert presented no reasonable explanation of how his designated endpoint of 345°F is" }, { "docid": "17440812", "title": "", "text": "O’Connell, Judge, delivered tlie opinion of tlie court: This is an appeal from tlie decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary Examiner in rejecting claim 4 in appellant’s application for a patent for alleged improvements in the catalytic cracking of hydrocarbon oils. Claims 2, 3, 5, and 6 were allowed. Claim 4 was rejected for the stated reason that it defined no subject matter patentable over the disclosure of the patent to Wilson, No. 2,249,924, granted July 22, 1941. Claim 4 reads— 4. In the catalytic cracking of hydrocarbon oils the improvement which comprises heating- a substantial liquid body of oil to be cracked at a moderate cracking temperature while in a vertically elongated cracking- zone containing superposed baffling means adapted to distribute dispersed upwardly flowing gaseous products and to impede the downward flow of suspended solids, supplying a finely divided argillaceous catalyst dispersed in,oil to be cracked to the upper end of said cracking zone, injecting gaseous products into the lower part of said zone, taking off cracked vapors and gases from the upper end of said zone, withdrawing residual oil and admixed spent catalyst from the lower end of said zone, and controlling the rate at which gaseous products are supplied to the lower portion of said zone relative to the rates at which oil to be cracked and admixed catalyst are supplied to the upper part of said zone to maintain a high ratio of dispersed catalyst to-oil within said zone. The subject matter of the rejected claim relates to a process directed to the production of gasoline by the catalytic cracking of hydrocarbon oils in an apparatus. The elements of the apparatus selected by appellant as pertinent to-this appeal are his vertically elongated cracking tower mounted in a furnace setting together with the four communicating connections-through which the involved substances are conducted according to the procedure defined by the rejected claim. The cracking tower is internally provided with baffles consisting of an upper section and a similar lower section of packing material. Two separate heater" }, { "docid": "6551385", "title": "", "text": "process. In view of the prior art, we see nothing unobvious in reacting the compounds of the allowed claims with a reducing agent to produce the reduced derivatives. [332 F.2d at 381, 51 C.C.P.A. at 1381.] We note that in the present ease the novel catalyst, ZK-22, is not merely itself reduced by a well-known reducing agent but itself catalyzes the hydrocarbon charge in the claimed process, a result that was not predictable until appellant had made his invention. Finally, the solicitor takes issue with appellant’s contention “that his process-of-use claims should be allowed because he is entitled to ‘reasonable latitude’ in claiming what he regards as his invention.” Appellant maintains that “hydrocarbon conversion” is “the very purpose behind research directed to the synthesis of novel catalyst substances” and that the method-of-use claims represent part of what “applicant regards as his invention.” (See 35 U.S.C. § 112, second paragraph.) The solicitor says the question here “is what is a reasonable restatement of the invention” and he concludes, with the board, that the proeess-of-use claims are a reasonable restatement only “if the process of use reflects an unexpected utility of the allowed composition.” We disagree with both premise and conclusion. The rejection here is under § 103 and the obviousness of the claimed process does not depend upon whether the claims are “a reasonable restatement of the invention.” We have concluded, for reasons stated above, that the process-of-use claims are patentable and that it was not necessary to show unexpected utility in order to show unobviousness. We would add, moreover, that in our view it is in the public interest to permit appellant to claim the process as well as the product. The result is to encourage a more detailed disclosure of the specific methods of using the novel composition he has invented in order to have support for the process claims. We believe the constitutional purpose of the patent system is promoted by encouraging applicants to claim, and therefore to describe in the manner required by 35 U.S.C. § 112, all aspects of what they regard as their inventions, regardless" }, { "docid": "15077996", "title": "", "text": "to 390°F (column 1, lines 42-43). This fraction is not the same as, nor equivalent to, that which is the subject of applicant’s composition claims. Talbert then limited the claims to up to C10 hydrocarbons, and at the examiner’s insistence added a boiling range of 121°F-345°F. The district court concluded that hydrocarbons boiling above 345°F were disclaimed by Talbert in order to obtain the patent, and imposed an estoppel commensurate with this conclusion. Talbert argues that the temperature limit was placed in the claims to distinguish the Hamilton reference and applied only to gasifier applications, and not to the standard carbureted fuel to which the '356 claims are directed. Talbert argues that “citation of [the gasifier fuels’] prosecution history is irrelevant” because the two types of fuels are very different, stating: “Although the substantial elimination of the higher-boiling Cn+ hydrocarbons is important for gasoline requiring a gasifier, those physical properties are not required of standard gasolines, which contain primers to help provide adequate front-end volatility to start engines.” Thus Talbert argues that the 345°F limit that was added to the claims does not raise an estoppel to reaching the equivalent Unocal standard carbureted fuels that contain CX1 hydrocarbons and boil above 345°F. Talbert requests remand to the district court in order to provide evidence that persons of skill in the gasoline fractionating art would know that a hydrocarbon fuel described by its carbon number, such as C6 to C10, when distilled will contain some Cn hydrocarbons that boil above 345°F. Talbert states that the 345°F limit does not describe the actual composition that is distilled, and would be so recognized. Talbert argues that this evidence would also show that Talbert did not disclaim coverage of gasolines having an endpoint higher than 345°F. Talbert’s patent was prosecuted before Festo was decided by the Supreme Court, and on GVR the patentee may provide evidence not previously relevant. However, in this case the proffered evidence, viewed favorably to Talbert, does not overcome the clarity of the disclaimer of fuels boiling in the range of the Hamilton reference, viz., from 80 F up to" } ]

[ { "docid": "22627868", "title": "", "text": "REENA RAGGI, Circuit Judge. Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. [ AXX XXX XXX ] (BIA July 16, 2004), aff'g In re Shunfu Li, No. [ AXX XXX XXX ] (Immig.Ct.N.Y.City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir.2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings. 1. Background Shunfu Li entered the United States without documentation in June 2001. In response to removal proceedings initiated by the Immigration" } ]

[ { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "22541041", "title": "", "text": "Yang’s application based on his findings that Yang’s asylum application was time-barred, see 8 U.S.C. § 1158(a)(2)(B), and that Yang lacked credibility. The IJ also concluded that petitioner’s application was frivolous under 8 U.S.C. §§ 1158(d)(4), (6). The decision was affirmed by the BIA on May 10, 2006, “except insofar as [the IJ] found that [Yang] had not established extraordinary circumstances for failing to meet the 1-year deadline for filing an asylum application.” In re Biao Yang, No. [ AXX XXX XXX ] (B.I.A. May 10, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 7, 2005). Petitioner Ming Liang Lin, also a native and citizen of the People’s Republic of China, applied for asylum, withholding of removal, and CAT relief in March 2001. In December 2004, IJ Noel Ferris denied Lin’s claims on adverse credibility grounds. The IJ also concluded that petitioner’s application was frivolous. Both of these determinations were affirmed, without opinion, by the BIA on June 12, 2006. In re Ming Liang Lin, No. [ AXX XXX XXX ] (B.I.A. June 12, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 20, 2004). Petitioners timely appealed the BIA decisions to this Court. Because the separate appeals involve common issues of law and fact, we consolidate the cases for disposition. We conclude that substantial evidence supports the credibility rulings; however, we vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in YL- 24 I. & N. Dec. 151. I. Adverse Credibility Determinations In Yang’s case, the BIA adopted and affirmed, then modified, the IJ’s decision. In such circumstances, we review the IJ’s decision minus the ground for denying relief that was rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Accordingly, we will address Yang’s asylum claim as if it were not barred by the one-year filing deadline, as did the BIA. In" }, { "docid": "23309377", "title": "", "text": "PER CURIAM: Petitioner Jin Xiu Chen, a citizen of the People’s Republic of China, seeks review of a January 20, 2006 order of the Board of Immigration Appeals (“BIA”) affirming the September 21, 2004 decision of Immigration Judge (“IJ”) Jeffrey S. Chase denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 21, 2004). In its order, the BIA also denied Chen’s motion to remand. In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006). Chen’s sole claim for relief is that she fears forced sterilization if she is returned to her home city of Changle City, Fujian Province, because she has three U.S.-born children. For the reasons to be discussed, because the documents identified in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and several documents submitted by Chen that the BIA did not address, suggest the existence an official policy of forced sterilization in Changle City, we remand this case to the BIA to determine the validity, scope, and import of these documents and to reconsider Chen’s claim of future persecution in light of them. In an accompanying summary order, we address the other arguments presented in Chen’s petition for review. The IJ found that Chen had failed to present evidence sufficient to establish that she would face forced sterilization if returned to her home city in China. Both this Court and the BIA have concluded that the evidence previously available to support Chinese asylum applicants’ claims of forced sterilization, including the oft-submitted “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird, was inadequate to establish the existence of an official policy of forced sterilization on the part of any Chinese province or locality, and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China. See Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006)" }, { "docid": "22396056", "title": "", "text": "concluded that petitioner appeared to have been “testifying from a rehearsed script of events” and that his story appeared to have been “fabricated.” Having determined that petitioner’s evidence could not be credited, the IJ found that petitioner had not met his burden of proof with respect to any of his claims for relief. With respect to petitioner’s asylum claim, the IJ made the further finding that, because petitioner had not demonstrated “by clear and convincing evidence” that he had entered the United States less than one year before filing his asylum application, petitioner’s application for asylum was untimely. In re Shu Wen Sun, No. [ A XX XXX XXX ] (Immig. Ct. Hartford June 9, 2004). Petitioner appealed to the BIA, which affirmed the IJ’s decision without opinion. In re Shu Wen Sun, No. [ A XX XXX XXX ] (B.I.A. Dec. 21, 2005). This petition for review followed. DISCUSSION When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). I. Asylum Application The IJ denied petitioner’s asylum application upon finding that (1) the application was untimely and (2) petitioner did not qualify for any exceptions to the statutory filing deadline. We lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3) (placing agency determinations as to the timeliness of an asylum application beyond judicial review); see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir.2007). In addition, while we do have jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such arguments in his brief. Accordingly, we must dismiss for lack of subject matter jurisdiction the portion of his petition seeking to review the denial of his asylum claim by the IJ and the BIA. See Xiao Ji Chen v. U.S. Dep’t of" }, { "docid": "22667435", "title": "", "text": "government was looking for her, noting that it was “conceivable that someone could leave a country despite the fact that other government officials are looking for the person.” Turning to her application for withholding of removal and relief under the Convention Against Torture, the IJ concluded that Lin had failed to establish her eligibility for either form of relief. Lin filed a timely appeal of the IJ’s decision to the Board of Immigration Appeals (“BIA”). In its October 2007 decision, the BIA affirmed the IJ’s adverse credibility determination and dismissed Lin’s appeal. In re Xiu Xia Lin, No. [ A XX XXX XXX ] (B.I.A. Oct. 31, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Dec. 16, 2005). She then sought review in our Court. In her petition before our Court, Lin argues that the IJ’s adverse credibility determination was flawed because: (1) the “discrepancies [and] omissions” relied upon by the IJ are “minimal”; (2) the IJ improperly relied on omissions in her documentary submissions as compared to her testimony; and (3) the IJ relied upon his own speculation in concluding that it was implausible that the government would have given her a birth certificate. Because Lin filed her asylum application after May 11, 2005, her claim is governed by the amendments made to the Immigration and Nationality Act (“INA”) by the passage of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006). B. The Real ID Act Prior to the passage of the REAL ID Act, courts of appeals had developed different rules governing the proper basis for an IJ’s adverse credibility determination. The law of our circuit provided that when an IJ based an adverse credibility determination on inconsistencies in an asylum applicant’s testimony or between the testimony and the documents the applicant submitted, the IJ was required (1) to demonstrate a nexus between inconsistencies in an asylum" }, { "docid": "23259835", "title": "", "text": "relief under the CAT because she was subjected to genital mutilation as a child, fears that her daughters would similarly be forcibly mutilated if she were removed, and because of the ongoing polit ical and ethnic conflict in which she fears for herself as a Diolua in Cote d’Ivoire. DISCUSSION I. Legal Standards “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). Legal issues, and the application of law to fact, are reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). An agency’s interpretation of its own regulation is accorded “ ‘substantial deference’ unless that interpretation is inconsistent with the plain language of the regulation.” Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008), quoting Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 262 (2d Cir.2006). The agency’s factual findings, including adverse credibility findings, are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Accordingly, such findings are reviewed under the substantial evidence standard, which requires that they be supported by “reasonable, substantial and probative evidence in the record when considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir.2007), quoting Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (internal quotation marks omitted). To meet this standard, “an adverse credibility determination must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Balachova v. Mukasey, 547 F.3d 374, 380 (2d Cir.2008) (internal quotations omitted); accord, Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir.2007). “We will vacate and remand for new findings ... if the agency’s reasoning or its factfinding process was sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009). “Asylum is a discretionary form of relief that hinges on persecution in the applicant’s country of nationality.” Delgado, 508 F.3d at 705. To be eligible for asylum, a petitioner must establish that she" }, { "docid": "19879992", "title": "", "text": "XX-XXX-XXX ] (B.I.A. June 22, 2007) (internal citations omitted). The BIA rejected petitioner’s claim that she fell within the exception for battered women set forth in section 1182(a)(6)(A)(ii)(II) on the basis that “[h]er marital troubles began when her U.S. husband found out about her entry and purported marriage in Nigeria.” Id. Specifically, the BIA concluded that petitioner could not demonstrate a “nexus between her fraudulent entry and her abusive marriage [because] ... [she] entered prior to even meeting her citizen husband,” id.; nor could she satisfy the requirements of section 1182(a)(6)(A)(ii)(II), see note 6 ante (text of provision), with evidence of “mistreatment of her by the Nigerian father of her son as they were not married,” id. Accordingly, the BIA “adopt[ed] and affirm[ed]” the IJ’s decision. Id. II. Discussion Because the BIA fully adopted the IJ’s decision, we review the decisions of both the BIA and IJ. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision, ... we review the decision of the IJ as supplemented by the BIA.”). Pursuant to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we defer to the agency’s interpretations of ambiguous provisions of the Immigration and Nationality Act, unless those interpretations are “arbitrary, capricious, or manifestly contrary to the statute.” See, e.g., Singh v. Gonzales, 468 F.3d 135, 138-39 (2d Cir.2006). We review an agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). A. The agency’s determination that petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) The bar on admissibility established by section 1182(a)(6)(C)(i) applies to “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States.... ” The agency determined" }, { "docid": "22669998", "title": "", "text": "parties. Preliminary to discussing the challenged precedential decisions prompted by these remands, we briefly recount the events leading to those decisions. A. Proceedings Leading to Prece-dential Decisions 1. Jian Hui Shao a. Initial Agency Proceedings In February 2002, Jian Hui Shao, a native of Fuzhou City in China’s Fujian Province, attempted to enter the United States unlawfully. In subsequent removal proceedings, Jian Hui Shao conceded re-movability but applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 el seq., and for relief under the Convention Against Torture (“CAT”). Jian Hui Shao asserted that he feared forcible sterilization in China because he had fathered two daughters in that country and Chinese law prohibited him, a non-agricultural worker, from having more than one child. To demonstrate the reasonableness of his fear — and to explain his abandonment of his wife in China only weeks after discovering her second pregnancy — Jian Hui Shao testified that he had been beaten and jailed by Chinese officials after his wife missed a gynecological examination intended to ensure her compliance with family planning policies and he refused to disclose her whereabouts. Identifying various inconsistencies and implausibilities in Jian Hui Shao’s account, the immigration judge (“IJ”) found him not credible in all respects but one: the fact that he now had two children in China. See In re Jian Hui Shao, No. [ A XX XXX XXX ], at 14-15 (Immig. Ct. N.Y. City Feb. 27, 2003). The IJ denied petitioner relief from removal, a determination summarily upheld by the BIA on initial direct review. See In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004). b. Proceedings in this Court On Jian Hui Shao’s initial petition for review by this court, we concluded that the agency’s adverse credibility determination was supported by substantial evidence. See Jian Hui Shao v. BIA, 465 F.3d at 500-01. Nevertheless, we remanded the case for further agency consideration of the question “under what circumstances, if any, having two children in China is sufficient grounds for a well-founded" }, { "docid": "22735600", "title": "", "text": "Judge CALABRESI concurs in a separate opinion. DENNIS JACOBS, Chief Judge: Xiao Xing Ni, a native and citizen of China, seeks review of a December 15, 2003 order of the Board of Immigration Appeals (“BIA”) affirming the July 18, 2002 decision of an immigration judge (“IJ”). In re Xiao Xing Ni, No. [ AXX XXX XXX ] (B.I.A. Dec. 15, 2003), aff'g [ AXX XXX XXX ] (Immig. Ct. N.Y. City July 18, 2002). The IJ determined that Ni’s testimony was not credible, and denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we conclude that the IJ’s decision was supported by substantial evidence. More analysis is required, however, because: [i] Ni has given birth to one child; [ii] certain documents (mentioned in Jin Xiu Chen v. U.S. Department of Justice, 468 F.3d 109 (2d Cir.2006)) might—if they are authentic—indicate that the birth of one child could result in forced sterilization for a person who is returned to Fujian Province; and [iii] our opinion in Tian Ming Lin v. U.S. Depart ment of Justice, 473 F.3d 48, 52 (2d Cir.2007) (per curiam), suggests in dicta that, although by statute we “may not order the taking of additional evidence,” 8 U.S.C. § 1252(a)(1), we may have “inherent power” to do so in the circumstances presented here. We need not decide whether (despite Congress’s proscription) there may be circumstances in which we retain an inherent power to remand to the BIA for the consideration of additional evidence; we hold more narrowly that regardless of whether such residual inherent power exists, we should not exercise it if: [i] the basis for the remand is an instruction to consider documentary evidence that was not in the record before the BIA; and [ii] the agency regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence. I Ni arrived in the United States in April 2001 and applied for asylum, withholding of removal, and CAT relief based on her claim of persecution under China’s family-planning policy. Her" }, { "docid": "22245028", "title": "", "text": "DENNIS JACOBS, Chief Judge: Petitioner Ying Li, a native and citizen of the People’s Republic of China, seeks review of a summary affirmance by the Board of Immigration Appeals (“BIA”) of the oral decision of an immigration judge (“IJ”), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Li, Ying, No. [ A XX XXX XXX ] (B.I.A. Feb. 20, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. New York City, Aug. 9, 2005). Li’s asylum application is premised on her claim that the Chinese government persecuted her for supporting Falun Gong. The IJ determined that Li was not credible, chiefly on the ground that her account is implausible, and denied her applications on that basis. We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The IJ relied on several “valid” and “cogent” reasons for rejecting Li’s testimony as implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). While explanations are available for features of petitioner’s account that were found implausible, we review the entire record, not whether each unusual feature of the account can be explained or rationalized. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 161 (2d Cir.2006). The IJ could conclude that Li’s account, taken all in all, is implausible; and so we cannot say that any reasonable adjudicator would be compelled to conclude that she testified credibly. Accordingly, the petition is denied. I. Ying Li was placed in removal proceedings in January 2005 when she attempted to enter the United States without valid travel documents. Li applied for asylum, withholding of removal, and relief under the CAT, claiming that the Chinese government persecuted her for her involvement with Falun Gong. Li’s account — as set forth in her asylum application and at her merits hearing — is as follows: Her uncle’s friend, a practitioner, introduced her to Falun Gong. Although Li had only a “basic understanding” of Falun Gong, she was “very interested” in it because “it [is] a good practice” and is" }, { "docid": "22541040", "title": "", "text": "PER CURIAM: Recently, the Board of Immigration Appeals (“BIA”) set down standards for re viewing determinations that an applicant’s asylum application was frivolous under section 208(d) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(d)(4), (6). In re Y-L- 24 I. & N. Dec. 151, 155 (B.I.A.2007). In the two cases currently before us, consolidated for disposition, the BIA upheld frivolousness determinations before the decision in Y-L-was rendered. We remand these cases in order to give the agency an opportunity, in the first instance, to reconsider its rulings in light of Y-L- and to further clarify the guidelines for review set forth in Y-L-. Petitioner Biao Yang, a native and citizen of the People’s Republic of China, applied for asylum and withholding of removal under the INA, 8 U.S.C. §§ 1158, 1231(b)(3), and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In January 2005, Immigration Judge (“IJ”) Paul A. DeFonzo denied Yang’s application based on his findings that Yang’s asylum application was time-barred, see 8 U.S.C. § 1158(a)(2)(B), and that Yang lacked credibility. The IJ also concluded that petitioner’s application was frivolous under 8 U.S.C. §§ 1158(d)(4), (6). The decision was affirmed by the BIA on May 10, 2006, “except insofar as [the IJ] found that [Yang] had not established extraordinary circumstances for failing to meet the 1-year deadline for filing an asylum application.” In re Biao Yang, No. [ AXX XXX XXX ] (B.I.A. May 10, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 7, 2005). Petitioner Ming Liang Lin, also a native and citizen of the People’s Republic of China, applied for asylum, withholding of removal, and CAT relief in March 2001. In December 2004, IJ Noel Ferris denied Lin’s claims on adverse credibility grounds. The IJ also concluded that petitioner’s application was frivolous. Both of these determinations were affirmed, without opinion, by the BIA on June 12, 2006. In re Ming Liang Lin, No. [ AXX XXX XXX" }, { "docid": "22073634", "title": "", "text": "PER CURIAM. Petitioner Liang Chen, a native and citizen of the People’s Republic of China, seeks review of a July 23, 2004 order of the Board of Immigration Appeals (“BIA”), affirming without opinion an April 30, 2003 decision by Immigration Judge (“IJ”) Paul A. DeFonzo that denied petitioner’s application for asylum, withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”). See In the Matter of Liang Chen, File No. [ A XX-XXX-XXX ] (Immig. Ct., New York, N.Y. Apr. 30, 2003). In his airport interview, asylum application, and testimony before the IJ, Chen alleged that his wife was subjected to a forced abortion by Chinese authorities. The underlying facts and procedural history are a matter of record and we recount here only those aspects that are pertinent to the disposition of the case. Petitioner claims on appeal that the IJ’s adverse credibility finding was not supported by substantial evidence and that, to the extent any discrepancies or omissions exist, they are not “central” to his asylum claim. The IJ based his adverse credibility determination principally upon his observations that (1) during his initial airport interview, Chen failed to mention an altercation he purportedly had with family planning officials, but later referenced the altercation in his asylum application and subsequent testimony; (2) Chen did not offer a plausible explanation for why he asserted at his airport interview— and then later abandoned the claim — that his wife had gone missing and was being sought by Chinese authorities; (3) it was implausible that Chinese officials would not have searched for Chen at his karaoke business, given that government officials later sealed off the business following Chen’s flight; (4) it was impossible to determine based on the foregoing and the evidence presented whether his wife’s abortion occurred, or if it did occur, whether it was voluntary or coerced; and (5) the petitioner made unsupported and concluso-ry statements suggesting that individuals known to his family were subjected to beatings and abusive treatment upon their return to China. Where, as here, the BIA affirms the IJ’s decision without opinion, we review the" }, { "docid": "22245031", "title": "", "text": "her father that someone had reported that she “colluded with Falun Gong followers,” and they challenged him when he denied that she was member of Falun Gong. According to Li, “[government officials pursued me everywhere, [and] threatened my family to disclose my whereabouts.” Subsequently, Li’s family arranged for her to leave China. In the United States, Li practices Falun Gong two to three times per week. She fears returning to China because “the Chinese government would arrest me, sentence me, and further persecute me” for being involved with Fa-lun Gong. The IJ denied Li’s application for asylum, withholding and CAT protection, reasoning, as described in Part III.B below: “None of this testimony is plausible or credible to the Court and, therefore, the Court does not believe that the respondent has presented testimony to which I can give credence.” In February 2007, the BIA summarily affirmed. II. In considering an application for asylum, withholding of removal, and CAT protection, the agency generally must make a credibility finding; failure to do so may be a ground for vacatur. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.2000). Although Li asserts on appeal that the IJ failed to make an adverse credibility determination, she did not exhaust this issue before the BIA; to the contrary, her submission to the BIA challenged the adverse credibility determination that the IJ made. We decline to consider this argument on appeal, and deem it forfeited. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007). III. In the alternative, Li challenges the IJ’s adverse credibility determination. A. When the BIA summarily affirms an IJ decision, we review the IJ decision as the final agency determination. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the agency’s factual findings, including an adverse credibility determination, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “In cases like this one, in which the IJ bases her denial of asylum on a finding that a petitioner’s" }, { "docid": "22332717", "title": "", "text": "preparing stories for would-be asylum applicants and selling the story, so to speak, as a service so that they have a basis to apply for asylum regardless of whether they actually had any problem in China. Given all this, IJ Vomaeka concluded (1) “that the respondent has not met her burden to prove that the factual basis for any of her three applications is more likely true than not,” and (2) that “the Court further finds that the respondent did submit a fabricated application for asylum.” Accordingly, Ye was ordered removed from the United States. Ye appealed the IJ’s ruling to the BIA, and on December 22, 2004, the BIA summarily affirmed. See In re Ye, Mei Chai, [ A XX XXX XXX ] (B.I.A. Dec. 22, 2004), aff'g No. [ A XX XXX XXX ] (Immig. Ct. New York, N.Y. Aug. 8, 2003). This petition for review followed. DISCUSSION “Where the BIA expressly adopts the IJ’s findings and reasoning, as it did here, we review the decision of the IJ as if it were that of the BIA.” Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). The IJ’s factual findings, including adverse credibility findings, are reviewed under the substantial evidence standard of 8 U.S.C. § 1252(b)(4)(B). While this standard of review is especially deferential, we have made clear that “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility finding that is “based on flawed reasoning ... will not satisfy the substantial evidence standard.” Secaida-Rosales v. Immigration and Naturalization Serv., 331 F.3d 297, 307 (2d Cir.2003). I In her briefing to this court, Ye argues that “[t]he similarity the Immigration Judge mentioned between two applicants is irrational.” We disagree. A Although this court has never spoken to the precise issue of whether inter-proceeding similarities may support an adverse credibility finding, our case law on intra-proceeding similarities has firmly embraced the commonsensical notion that striking similarities between affidavits are an indication that the" }, { "docid": "18360089", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We consider here whether a person who fathers or gives birth to two or more children in China, in apparent violation of China’s family planning policies, may qualify on that basis alone as “a person who has a well founded fear that he or she will be forced” by the Chinese government “to abort a pregnancy or to undergo involuntary sterilization” and may accordingly qualify as a refugee. See 8 U.S.C. § 1101(a)(42) (defining “refugee”). We consider whether this question of statutory interpretation should be decided in the first instance by the administrative agency charged with enforcing the relevant portion of the Immigration and Nationality Act of 1952 (“INA”). Petitioner Jian Hui Shao, a native and citizen of China, seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming without opinion an order of Immigration Judge (“IJ”) William Van Wyke denying his application for asylum, withholding of removal pursuant to the INA, and relief under the Convention Against Torture (“CAT”), and ordering petitioner removed to China. See In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Feb. 27, 2003). Petitioner argued that he was entitled to asylum on the ground that he had fled China to escape its family planning program and is at risk of being forcibly sterilized if he returns to China because he and his wife have two children. The IJ, largely because he did not find Shao’s testimony credible, denied all his applications for relief and ordered him removed to China. The BIA affirmed without opinion as prescribed by 8 C.F.R. § 1003.1(e)(4), see generally Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir.2006) (describing BIA “streamlining” program), and this petition followed. Introduction In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. After being served a Notice to Appear by the Immigration and Naturalization Service (“INS”), he conceded removability as charged and applied for asylum and other relief. In his airport interview, his" }, { "docid": "23259834", "title": "", "text": "IJ denied CAT relief, finding in a cursory manner that Kone failed to demonstrate that it was more likely than not that she would be tortured if she returned to Cote d’Ivoire or that she could not receive protection from the government there. On February 27, 2008, the BIA, in a short two-paragraph opinion, adopted and affirmed the IJ’s decision. In re Kone, [ AXX-XXX-XXX ] (B.I.A. Feb. 27, 2008). The BIA specifically concurred in the IJ’s adverse credibility determination, finding that Kone failed to offer a credible explanation for returning to Cote d’Ivoire on multiple occasions after the events giving rise to her persecution claims. The BIA further held that “[t]he Immigration Judge also correctly concluded that [Kone’s] fear that her United States citizen daughters will be subjected to female genital mutilation is not a legally valid basis for the respondent’s persecution claim.” Id. This petition for review followed. Kone argues that substantial evidence does not support the agency’s adverse credibility determination, and that she has established eligibility for asylum, withholding of removal and relief under the CAT because she was subjected to genital mutilation as a child, fears that her daughters would similarly be forcibly mutilated if she were removed, and because of the ongoing polit ical and ethnic conflict in which she fears for herself as a Diolua in Cote d’Ivoire. DISCUSSION I. Legal Standards “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). Legal issues, and the application of law to fact, are reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). An agency’s interpretation of its own regulation is accorded “ ‘substantial deference’ unless that interpretation is inconsistent with the plain language of the regulation.” Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008), quoting Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 262 (2d Cir.2006). The agency’s factual findings, including adverse credibility findings, are “conclusive unless any reasonable adjudicator would be compelled to conclude" }, { "docid": "22541042", "title": "", "text": "] (B.I.A. June 12, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 20, 2004). Petitioners timely appealed the BIA decisions to this Court. Because the separate appeals involve common issues of law and fact, we consolidate the cases for disposition. We conclude that substantial evidence supports the credibility rulings; however, we vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in YL- 24 I. & N. Dec. 151. I. Adverse Credibility Determinations In Yang’s case, the BIA adopted and affirmed, then modified, the IJ’s decision. In such circumstances, we review the IJ’s decision minus the ground for denying relief that was rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Accordingly, we will address Yang’s asylum claim as if it were not barred by the one-year filing deadline, as did the BIA. In cases such as Lin’s where the BIA summarily affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141,144 (2d Cir.2006). We owe “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2nd Cir.2007) (en banc). Hence, our review of an IJ’s credibility assessment is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at" }, { "docid": "22663571", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We hereby grant the petition for rehearing of our January 6, 2006 opinion in this case, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir.2006). In the January 6 opinion, under the heading “I. Asylum,” id. at 150-55, we expressed the view that “questions of law,” as the term is used in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 (“REAL ID Act”), Pub.L. No. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)) — in part defining the scope of our jurisdiction to review removal, deportation, or exclusion orders — refers only to “a narrow category of issues regarding statutory construction.” Xiao Ji Chen, 434 F.3d at 153 (internal quotation marks omitted). Upon consideration of the briefs submitted on this petition for rehearing, we conclude that the term “questions of law” is not so limited. See post at 323-32. We revise substantially our analysis in Part I of the earlier opinion as to what constitutes “questions of law” under section 106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion in its place. Petitioner Xiao Ji Chen, a native and citizen of China, seeks review of. a September 25, 2002 order of the Board of Immigration Appeals (“BIA”) affirming the November 17, 2000 decision of Immigration Judge (“IJ”) Adam Opaciuch. In re Xiao Ji Chen, No. [ A XX XXX XXX ] (B.I.A. Sept. 25, 2002), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Nov. 17, 2000) (“IJ Decision”). The IJ found petitioner’s application for asylum, which was filed more than one year after her arrival in the United States, untimely. See 8 U.S.C. § 1158(a)(2)(B). He further found that she had not established either “changed circumstances which materially affect[ed][her] eligibility for asylum” or the existence of “extraordinary circumstances” that would have excused her tardiness in filing her application. Id. § 1158(a)(2)(D). Finally, the IJ denied petitioner’s application for withholding of removal based on his finding that she failed to establish that were she to return" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "22614972", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: Petitioners Safet Corovic (“Corovic”), his wife Vesmina Corovic (“Vesmina”), and their daughter Ilda Corovic (“Ilda”), natives and citizens of the Former Yugoslav Republic of Macedonia (“Macedonia”), seek review of an order of the Board of Immigration Appeals (“BIA”) affirming an order of an Immigration Judge (“IJ”) that, in pertinent part, denied petitioners’ application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re: Safet Corovic, No. [ A XX XXX XXX ] (B.I.A. Dec. 14, 2006), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 4, 2005). Petitioners contend that the IJ’s adverse credibility finding is not supported by substantial evidence because (1) the submission of two allegedly fraudulent documents is insufficient, standing alone, to support an adverse credibility determination; (2) certain evidence should have been excluded from the record because it was obtained in violation of petitioners’ confidentiality rights under 8 C.F.R. § 208.6; and (3) the IJ and BIA relied erroneously on (a) excluded evidence and (b) inconclusive evidence. As set forth more fully below, we conclude that the IJ’s adverse credibility finding lacked an adequate factual basis and instruct the fact-finder to determine on remand (1) whether one of the documents submitted by Corovic was in fact fraudulent; (2) whether Corovic had reason to know that the documents he submitted were fraudulent; and (3) whether the violations of section 208.6 give rise to a new claim for relief. BACKGROUND Vesmina and Ilda entered the United States in November 1996 as B-2 nonimmigrant visitors, and Corovic entered the United States without inspection in May 1997. In September 1997, Corovic filed an application for asylum, withholding of removal, and CAT relief on the basis of religious and political persecution, and he included Vesmina and Ilda in that application. In that application, Corovic alleged that he and his wife were assaulted and tortured because (1) they are Bosnian Muslims and (2) he was affiliated with the Party of Democratic Action (“SDA”). Specifically, Corovic claims that he was arrested in 1995 at an SDA meeting and later" } ]

[ { "docid": "22742846", "title": "", "text": "or at trial, pursuant to a subpoena, and give what information he possesses. The opinions of the state courts in Branzburg and Pappas are typical of the prevailing view, although a few recent cases, such as Caldwell, have recognized and given effect to some form of constitutional newsman’s privilege. See State v. Knops, 49 Wis. 2d 647, 183 N. W. 2d 93 (1971) (dictum); Alioto v. Cowles Communications, Inc., C. A. No. 52150 (ND Cal. 1969); In re Grand Jury Witnesses, 322 F. Supp. 573 (ND Cal. 1970); People v. Dohrn, Crim. No. 69-3808 (Cook County, Ill., Cir. Ct. 1970). The prevailing constitutional view of the newsman’s privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against un founded criminal prosecutions. Grand jury proceedings are constitutionally mandated for the institution of federal criminal prosecutions for capital or other serious crimes, and “its constitutional prerogatives are rooted in long centuries of Anglo-American history.” Hannah v. Larche, 363 U. S. 420, 489-490 (1960) (Frankfurter, J., concurring in result). The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The adoption of the grand jury “in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.” Costello v. United States, 350 U. S. 359, 362 (1956). Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelm ing majority of the States. Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be" } ]

[ { "docid": "2783908", "title": "", "text": "a continuing or planned wrongful act”); United States v. Calvert, 523 F.2d 895, 909 (8th Cir.1975) (explaining that “[i]t is the client’s purpose which is controlling, and it matters not that the attorney was ignorant of the client’s purpose”). We see no credible basis for applying a different rule in the psychotherapist-patient context. V. THE DUE PROCESS CLAIM We next consider Violette’s contention that the district court infracted his right to due process because it did not afford him access to evidentiary materials (in particular, the Kelly affidavit). This contention lacks merit. The short of it is that denying Violette access to grand jury materials did not deprive him of due process. The public interest in the secrecy of grand jury proceedings generally outweighs a party’s interest in obtaining such materials. See, e.g., In re Grand Jury Subpoenas, 144 F.3d 653, 662-63 (10th Cir.), cert. denied, - U.S. -, 119 S.Ct. 412, 142 L.Ed.2d 334 (1998); In re Grand Jury Proceedings, Thurs. Special Grand Jury, 33 F.3d 342, 351 (4th Cir.1994). That rule has particular bite when, as now, compelling disclosure would set the stage for satellite litigation in advance of grand jury action. See United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (“Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.”). The law seems well-settled that, in the context of grand jury proceedings, the government may proffer ex parte the evidence on which it bases its claim that a particular privilege does not apply, and that the court may weigh that evidence, gauge its adequacy, and rule on the claim without affording the putative privilege-holder a right to see the evidence proffered or an opportunity to rebut it. See, e.g., In re Grand Jury Subpoenas, 144 F.3d at 662-63; In re Grand Jury Proceedings, 33 F.3d at 352-53; In re Antitrust Grand Jury, 805 F.2d at 167-68. We have no desire to reinvent the jurisprudential wheel. Suffice to" }, { "docid": "23254400", "title": "", "text": "106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); accord, Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962), it is perhaps advisable for us to reach the merits and confirm what should be manifest from recent decisions in this circuit and in the United States Supreme Court. Specifically, it is abundantly clear after our own decision in United States v. Doe (Schwartz), 457 F.2d 895, 899-901 (2d Cir. 1972) (Friendly, C. J.), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973), and the Supreme Court’s rulings in United States v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), and United States v. Dionisio, 410 U.S. 1, 15-18, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), that, under prevailing constitutional standards, the government has no burden whatever to make a preliminary showing that handwriting or voice exemplars or fingerprints are relevant to a grand jury investigation then in progress, for the compelled production of such evidence implicates no constitutional rights and “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, supra, 410 U.S. at 17, 93 S.Ct. at 773. This is not to say, of course, that the grand jury is endowed with an absolute license to seek evidence not relevant to its investigative function but we are only saying that the government does not in each and every case bear the constant burden of initially showing the relevance of the particular evidence sought to be produced by way of subpoena. Instead, the party seeking to quash a subpoena must carry the burden of showing that the information sought bears “no conceivable relevance to any legitimate object of investigation by the federal grand jury.” In re Morgan, 377 F.Supp. 281, 284 (S.D.N.Y.1974) (Gurfein, J.), quoting In re Horowitz, 482 F.2d 72, 80 (2nd Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). Finally, the weakness" }, { "docid": "6431353", "title": "", "text": "318, 2 L.Ed.2d 321 (1958) (indict ment not open to challenge on ground that it was procured in violation of Fifth Amendment). Solicitude for the proper and efficient functioning of the grand jury has made the Court reluctant to authorize procedures that would allow “protracted interruption of grand jury proceedings.” Gelbard, 408 U.S. at 70, 92 S.Ct. at 2372-73 (White, J., concurring). Thus, in Calandra, the Court held that the exclusionary rule for alleged Fourth Amendment violations would not be available at the grand jury stage because the hearings necessitated by such a rule “would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective.” 414 U.S. at 349, 94 S.Ct. at 620-21. In R. Enterprises, the Court held that the standards set out in United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103-04, 41 L.Ed.2d 1039 (1974), for relevancy and admissibility of documents sought by a subpoena duces tecum in the trial stage were not applicable at the grand jury stage because such rules would invite unacceptable “procedural delays and detours.” R. Enterprises, 498 U.S. at 298, 111 S.Ct. at 726-27. After noting that “We have expressly stated that grand jury proceedings should be free of such delays,” the Court quoted United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973), for the proposition that: “‘Any holding that would straddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.’ ” Id. at 298-99, 111 S.Ct. at 727 (quoting Dionisio, 410 U.S. at 17, 93 S.Ct. at 773). If intervenors were permitted to file motions to quash subpoenas duces tecum, the grand jury would be straddled with precisely the delay and disruption that Congress sought to avoid. There are numerous potential issues for side litigation in a statute as complex as Title III, such as whether an intervenor was an “aggrieved person” according to § 2510(11) or whether there" }, { "docid": "2783909", "title": "", "text": "bite when, as now, compelling disclosure would set the stage for satellite litigation in advance of grand jury action. See United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (“Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.”). The law seems well-settled that, in the context of grand jury proceedings, the government may proffer ex parte the evidence on which it bases its claim that a particular privilege does not apply, and that the court may weigh that evidence, gauge its adequacy, and rule on the claim without affording the putative privilege-holder a right to see the evidence proffered or an opportunity to rebut it. See, e.g., In re Grand Jury Subpoenas, 144 F.3d at 662-63; In re Grand Jury Proceedings, 33 F.3d at 352-53; In re Antitrust Grand Jury, 805 F.2d at 167-68. We have no desire to reinvent the jurisprudential wheel. Suffice to say that there is nothing about the psychotherapist-patient privilege which would impel us to depart from the accepted procedure or to question its constitutionality. We conclude, therefore, that the district court’s decision to deny Violette access to the requested materials did not offend due process. VI. CONCLUSION We need go no further. For the reasons stated, we hold that the psychotherapist-patient privilege, like the attorney-client privilege, is subject to a crime-fraud exception; that the district court did not abuse its discretion either in finding the crime-fraud exception applicable to the subpoenaed evidence or in enforcing the subpoenas issued to the two psychiatrists; and that Violette’s due process rights have not been abridged by denying him access to the records of an ongoing grand jury investigation. The orders appealed from, are affirmed. Mandate shall issue forthwith. . The government previously had questioned the confidentiality of the material by asserting that voluntary disclosure to insurers effectively waived the privilege. The United States Attorney has abandoned this argument on appeal, however, and we do not consider its merits." }, { "docid": "526324", "title": "", "text": "be noted that the cases which have allowed judicial intervention at the preindictment, investigatory stage, have required that serious abuses first be shown. See In re Grand Jury Investigation, 696 F.2d 449, 451 (6th Cir.1982) and cases cited therein. No such showing has been made here. Clearly, petitioner’s conclusory allegations are insufficient to warrant the court’s intervention through the use of its supervisory powers. Use of these supervisory powers to disqualify government officials from proceeding before a grand jury based on conclusory allegations of conflict of interest and speculation as to possible improprieties runs afoul of the policies of promoting “a fair method of instituting criminal proceedings”, Costello, supra, 350 U.S. at 362, 76 S.Ct. at 408, protecting “citizens against arbitrary and oppressive governmental action”, Calandra, supra, 414 U.S. at 343, 94 S.Ct. at 617, or assuring the “protection of citizens against unfounded criminal prosecutions.” Branzburg, supra, 408 U.S. at 686, 92 S.Ct. at 2659. Accordingly, whether a prosecutor who appears before a grand jury labors under a conflict of interest or whether his conduct oversteps the bounds of propriety should be determined after indictment, not by mere conjecture or speculation beforehand. To hold otherwise would burden the grand jury with minitrials and preliminary showings which would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). Wherefore, for the reasons stated above, petitioner’s motion for disqualification is hereby DENIED. All grand jury proceedings related to Mr. Pujol shall continue their normal course. SO ORDERED. . Model Code of Professional Responsibility, DR 5 — 105(D), provides: If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment." }, { "docid": "6431312", "title": "", "text": "490 U.S. 605, 613, 109 S.Ct. 2037, 2043, 104 L.Ed.2d 696 (1989); see also Bennett v. Spear, — U.S. -, -, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (stating that Congress can modify or abrogate prudential standing requirements). This can only mean that lower courts, when confront ed with a question of whether to recognize prudential standing in a particular litigant, must consider all factors relevant to making “sound judicial policy.” It is therefore appropriate to consider an additional prudential concern in determining whether to recognize standing in this case. Specifically, we must consider whether finding standing in Doe 1 and Doe 2 would unduly impede the grand jury investigatory process and thereby frustrate the public interest in fair and expeditious administration of the criminal laws. See generally United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). “As a necessary consequence of its investigatory function, the grand jury paints with a broad brush.” United States v. R. Enterprises, Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991). “Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law.” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). However, it is equally true that “the powers of the grand jury are not unlimited.” Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); see also R. Enterprises, 498 U.S. at 299, 111 S.Ct. at 727; Dionisio, 410 U.S. at 11, 93 S.Ct. at 770. Just as grand juries must operate within the confines of the Constitution, see Branzburg, 408 U.S. at 708, 92 S.Ct. at 2670, so too must they comply with the limitations imposed on them by Congress (as long as those limitations are not unconstitutional). We perceive two ways in which a recognition of standing here might be regarded as having a potential to impede the grand jury’s investigative process. First, in those instances where a subpoena is quashed, this would, of course, deprive the grand jury of information it" }, { "docid": "17121210", "title": "", "text": "law. II. A. Central to our review of the District Court’s decision is an understanding of the role of the grand jury in the administration of our criminal justice system. The Supreme Court has commented: The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury. The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. United States v. Calandra, 414 U.S. 338, 342-43, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (citations, quotation, and footnote omitted). A grand jury proceeding is not an adversary hearing where guilt or innocence is adjudicated but an ex parte investigation to determine if there is probable cause to believe a crime has been committed. The grand jury deliberates in secret and acts “independently of either prosecuting attorney or judge-” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quotation omitted). Because it is essential to the federal criminal justice system, this investigative body has great powers of investigation and inquisition. The grand jury may generally “compel the production of evidence or testimony of witnesses ... unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” Calandra, 414 U.S. at 343, 94 S.Ct. 613. To prevent abuse of this process, this court has required the government to justify a grand jury subpoena by making “some preliminary showing by affidavit that each item [being subpoenaed] is at least relevant to an investigation being conducted by the grand jury and" }, { "docid": "12670177", "title": "", "text": "Policies Behind Rule 17 The final question is whether PF 15 frustrates the federal policies promoted by Rule 17. Williams, supra. The grand jury has broad investigative power; with limited exceptions, it has a right to every person’s evidence. United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1959), cited in United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973). It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquires is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation____ Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The Supreme Court has repeatedly warned against “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings [that] would impede its investigation and frustrate the public’s interest in the fair and expeditious administration of criminal laws.” United States v. Dionisio, 410 U.S. at 17, 93 S.Ct. at 773. At the same time, however, the Court has invariably circumscribed its holdings by explicitly reiterating the power of the district courts to control the use of grand jury subpoenas. See Calandra 414 U.S. at 346, 94 S.Ct. at 619; Dionisio, 410 U.S. at 9, 93 S.Ct. at 769; Branzburg, 408 U.S. at 688, 92 S.Ct. at 2660. Thus, the answer to the ultimate question posed by Williams, supra, depends upon resolution of two subsidiary issues: first, does PF 15 deprive the grand jury of any person’s evidence to an extent not previously permitted under federal law; and second, would it impede the investigations of grand juries with minitrials and preliminary showings. * As to the first question, it is clear from what has already been said in this opinion that PF 15 provides no new testimonial privileges; nor does it create new grounds for shielding a citizen from his or her duty to provide evidénce to a grand jury. As to the second, plaintiffs have not sustained their burden of demonstrating the requisite" }, { "docid": "17121220", "title": "", "text": "Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987) (quotation omitted), quoted in In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 183 (3d Cir.1990); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (describing similar reasons for the courts’ reluctance “to lift unnecessarily the veil of secrecy from the grand jury”). Moreover, the Supreme Court made clear in Dionisio, that saddling a grand jury with minitrials “would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” 410 U.S. at 17, 93 S.Ct. 764. Given the acknowledged need for secrecy in grand jury proceedings, we reject Appellant’s argument that the “unique facts and circumstances in this case,” including the length of time the investigation has been pending and the fact that the nature of the investigation has already been made public in several contexts, required the District Court to order disclosure of the government’s ex parte affidavit. As we have stated, the ex parte affidavit includes excerpts of witness testimony and documents obtained during the investigation, which is ongoing. We conclude that the District Court did not abuse its discretion in denying Appellant and/or his attorney access to this information to protect grand jury secrecy. Our decision is in accord with those of the other federal courts of appeal that have already addressed this precise issue and rejected due process claims made under virtually identical facts. For example, in In re Grand Jury Subpoenas, 144 F.3d 653 (10th Cir.1998), the former president and chief executive officer of a hospital who was among various targets of a grand jury investigation appealed the order denying his motion to quash a grand jury subpoena directed to the hospital’s counsel, with whom he had a personal attorney-client relationship. The Court of Appeals held there was no abuse of discretion or due process violation by the district court’s refusal to disclose the ex parte government affidavit from which it determined that the crime-fraud exception applied. Id. at" }, { "docid": "21543955", "title": "", "text": "United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). Although a grand jury may not itself violate a valid privilege, it may consider evidence obtained in violation of the Fourth Amendment, Calandra, 414 U.S. at 351-52, 94 S.Ct. at 621-22, or the Fifth Amendment, Lawn v. United States, 355 U.S. 339, 350, 78 S.Ct. 811, 318, 2 L.Ed.2d 321 (1958), or that would otherwise be incompetent at trial, Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956) (indictment based solely on hearsay evidence). Grand jury inquiries grounded on information obtained in violation of a constitutional provision do not themselves work an additional wrong; they “are only a derivative use of the product of a past unlawful [action].” Calandra, 414 U.S. at 354, 94 S.Ct. at 623. To be sure, if the subpoena for the documents were part and parcel of a government scheme to invade Company’s attorney-client privilege, it might be thought to be one continuous unlawful or improper series of actions. But if that were so, we would still be presented with only a derivative use of improperly obtained evidence. Even were the district court inclined to disbelieve the government’s representations — that its prosecutors before the grand jury were not privy to the six documents the vice president turned over to the government — the court would not be obliged to conduct a hearing into the matter at this stage in the proceedings. Were we to conclude otherwise, we would encourage interruptions and delays in the grand jury process that skilled defense counsel might exploit to “try the prosecution” even before an indictment could issue. “Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973); see also Costello, 350 U.S. at 363, 76 S.Ct. at 408. Should an indictment ultimately be returned against Company, it" }, { "docid": "22837073", "title": "", "text": "this Court declined to apply the rule against hearsay to grand jury proceedings. Strict observance of trial rules in the context of a grand jury’s preliminary investigation “would result in interminable delay but add nothing to the assurance of a fair trial.” Id., at 364. In United States v. Calandra, 414 U. S. 338 (1974), we held that the Fourth Amendment exclusionary rule does not apply to grand jury proceedings. Permitting witnesses to invoke the exclusionary rule would “delay and disrupt grand jury proceedings” by requiring adversary hearings on peripheral matters, id., at 349, and would effectively transform such proceedings into preliminary trials on the merits, id., at 349-350. The teaching of the Court’s decisions is clear: A grand jury “may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials,” id., at 343. This guiding principle renders suspect the Court of Appeals’ holding that the standards announced in Nixon as to subpoenas issued in anticipation of trial apply equally in the grand jury context. The multifactor test announced in Nixon would invite procedural delays and detours while courts evaluate the relevancy and admissibility of documents sought by a particular subpoena. We have expressly stated that grand jury proceedings should be free of such delays. “Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U. S. 1, 17 (1973). Accord, Calandra, supra, at 350. Additionally, application of the Nixon test in this context ignores that grand jury proceedings are subject to strict secrecy requirements. See Fed. Rule Crim. Proc. 6(e). Requiring the Government to explain in too much detail the particular reasons underlying a subpoena threatens tQ compromise “the indispensable secrecy of grand jury proceedings.” United States v. Johnson, 319 U. S. 503, 513 (1943). Broad disclosure also affords the targets of investigation far more information about the" }, { "docid": "6431354", "title": "", "text": "grand jury stage because such rules would invite unacceptable “procedural delays and detours.” R. Enterprises, 498 U.S. at 298, 111 S.Ct. at 726-27. After noting that “We have expressly stated that grand jury proceedings should be free of such delays,” the Court quoted United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973), for the proposition that: “‘Any holding that would straddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.’ ” Id. at 298-99, 111 S.Ct. at 727 (quoting Dionisio, 410 U.S. at 17, 93 S.Ct. at 773). If intervenors were permitted to file motions to quash subpoenas duces tecum, the grand jury would be straddled with precisely the delay and disruption that Congress sought to avoid. There are numerous potential issues for side litigation in a statute as complex as Title III, such as whether an intervenor was an “aggrieved person” according to § 2510(11) or whether there was in fact a statutory violation under § 2511. The majority’s ruling would require adversarial hearings on matters peripheral to the grand jury’s investigation and could effectively transform the grand jury proceeding into a “preliminary trial[ ] on the merits” in a way that the Court in Calandra found unacceptable. Calandra, 414 U.S. at 350, 94 S.Ct. at 621. The consequential appeal, as here, if an intervenor has standing will necessarily produce further unacceptable delays in the grand jury’s work. I am not convinced that the delay and disruption to the grand jury proceedings that the majority’s holding will cause are offset by the benefits of the majority’s ruling. Allowing parties to exclude such evidence at the grand jury stage will do little to prevent future violations of the statute, particularly among private citizens. See Calandra, 414 U.S. at 351, 94 S.Ct. at 621 (“[a]ny incremental deterrent effect which might be achieved by extending the [exclusionary] rule to grand jury proceedings is uncertain at best”). And Congress’s effort to protect an aggrieved person from the" }, { "docid": "14025155", "title": "", "text": "a document already in its possession, and that its sole purpose in requesting the samples was to make legitimate investigative comparisons with documents that may contain her handwriting and lead to the “discovery or further gathering of evidence of criminal offenses.” Finally the court decided it would not apply the Schofield I procedure “. until the Fifth Circuit says that I must . ” The Court found that the government had made a sufficient showing that there was no abuse of the grand jury process. The court ruled Ms. McLean in civil contempt under 28 U.S.C. § 1826 and that even though she had been granted immunity the handwriting exemplars were not included. We affirm. Schofield I recognized that United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), “[bjoth hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars.” 486 F.2d at 89. But the Third Circuit distinguished between an adjudication based on constitutional principles and one “involv[ing] the district court’s supervisory power over the proper use of its process in a grand 'jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.” Ibid. The Third Circuit made it clear that the guidelines it set were to be the law in that circuit and not required by the Constitution or the Supreme Court. We are not prepared to make such the law in the Fifth. As noted by the Supreme Court: Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773 (1973). In the absence of a witness asserting harassment or" }, { "docid": "12670176", "title": "", "text": "71 L.Ed.2d 116 (1981), the Court of Appeals for the Sixth Circuit struck down a local rule restricting contact between a class plaintiff or his counsel and actual or potential class members because it frustrated the policies behind Fed.R.Civ.P. 23 by, inter alia, discouraging use of the class action device. The court restated the test for determining when a conflict exists between a local rule and federal law: A local rule is inconsistent with federal rules and statutes if it alters those aspects of the litigation process which bear upon the ultimate outcome of the litigation, thereby frustrating federal policies. Id. at 435 (citing Colgrove v. Battin, 413 U.S. 149, 163-64 and n. 23, 93 S.Ct. 2448, 2456 and n. 23, 37 L.Ed.2d 522 (1973); Miner v. Atlass, 363 U.S. 641, 649-50, 80 S.Ct. 1300, 1305, 4 L.Ed.2d 1462 (1960)). As will be shown in the next section, the inconsistency found by the Williams court between the local rule and Civil Rule 23 simply does not exist between PF 15 and Criminal Rule 17. 2. Policies Behind Rule 17 The final question is whether PF 15 frustrates the federal policies promoted by Rule 17. Williams, supra. The grand jury has broad investigative power; with limited exceptions, it has a right to every person’s evidence. United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1959), cited in United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973). It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquires is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation____ Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The Supreme Court has repeatedly warned against “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings [that] would impede its investigation and frustrate the public’s interest in the fair and expeditious administration of criminal laws.” United States v. Dionisio, 410 U.S. at 17, 93 S.Ct." }, { "docid": "23507515", "title": "", "text": "Court, echoing the concerns expressed in Mr. Justice White’s concurring opinion in Gelbard v. United States, supra, there stated: Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. The probable result would be “protracted interruption of grand jury proceedings,” Gelbard v. United States, 408 U.S. 41, 70 [92 S.Ct. 2357, 33 L.Ed.2d 179] (1972) (White, X, concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Term we reaffirmed our disinclination to allow litigious interference with grand jury proceedings: “Any holding that would saddle the grand jury with mini-trials and preliminary 491 F.2d—73 V2 showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal law.” United States v. Dionisio, 410 U.S. 1, 17 [93 S.Ct. 764, 35 L.Ed.2d 67] (1973)'. 94 S.Ct. at 620-621 (footnotes omitted; citations partially omitted). . See transcript of January 23, 1974 proceedings, p. 20." }, { "docid": "16431574", "title": "", "text": "the quashing of a subpoena”); see also Fed.R.Crim.P. 17(c) (authorizing courts to quash a subpoena “if compliance would be unreasonable or oppressive”). In so holding, the Whitehouse court brushed aside the seemingly more rigorous criteria delineated in the comment to the rule, on the ground that the comment was merely advisory. See 53 F.3d at 1358 n. 12. So viewed, the rule imposed no additional burden on grand jury independence because courts, in theory, would apply the motion-to-quash standards that govern under Rule 17, not the comment’s suggested criteria, in determining whether to approve an attorney subpoena request. The Rhode Island rule’s saving grace is absent here. Local Rule 3.8(f) differs significantly in that it imposes new substantive requirements for judicial preapproval of grand jury subpoenas. In so doing, the rule alters the grand jury’s historic role, places it under overly intrusive court supervision, curbs its broad investigative powers, reverses the presumption of validity accorded to its subpoenas, undermines the secrecy of its proceedings, and creates procedural detours and delays. It therefore impermissibly interferes with grand jury proceedings. See 1 Hazard & Hodes, supra, § 3.8:701, at 702 (Supp.1997) (“Rule 3.8(f) in its original form seemed clearly invalid ... as applied to ... federal grand jury subpoenas to criminal defense lawyers.”). Because any one of these vices would suffice to invalidate the rule as applied to grand jury subpoenas, we confine our discussion to two of the most glaring defects: Local Rule 3.8(f)’s impact on grand jury secrecy and its potential as an incubator for delay. In United States v. R. Enterprises, Inc., 498 U.S. 292, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991), the Court held that the government could not be required to demonstrate that the materials sought by a grand jury subpoena were relevant. See id. at 298-99, 111 S.Ct. 722. The Court explained that such a requirement “ ‘would saddle a grand jury with mini- trials and preliminary showings,’ ” id. (quoting United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)), and would “threaten[ ] to compromise ‘the indispensable secrecy of" }, { "docid": "17121211", "title": "", "text": "L.Ed.2d 561 (1974) (citations, quotation, and footnote omitted). A grand jury proceeding is not an adversary hearing where guilt or innocence is adjudicated but an ex parte investigation to determine if there is probable cause to believe a crime has been committed. The grand jury deliberates in secret and acts “independently of either prosecuting attorney or judge-” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quotation omitted). Because it is essential to the federal criminal justice system, this investigative body has great powers of investigation and inquisition. The grand jury may generally “compel the production of evidence or testimony of witnesses ... unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” Calandra, 414 U.S. at 343, 94 S.Ct. 613. To prevent abuse of this process, this court has required the government to justify a grand jury subpoena by making “some preliminary showing by affidavit that each item [being subpoenaed] is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir.1973). District courts enjoy considerable discretion in determining whether the Schofield affidavit submitted by the government is sufficient to enforce a subpoena. See In re Grand Jury, 103 F.3d 1140, 1145 (3d Cir.1997). If the district court decides that the government should present information beyond the minimal Schofield requirements, it may use in camera proceedings or ex parte affidavits to preserve grand jury secrecy, a procedure we have consistently endorsed. See id.; see also United States v. R. Enters., Inc., 498 U.S. 292, 302, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). The issue came before us recently in In re the Grand Jury Empaneling of the Special Grand Jury, 171 F.3d 826 (3d Cir.1999), where witnesses subpoenaed by the grand jury had refused to testify against their rabbi father on religious grounds. They filed a motion to quash the subpoena. The government opposed the motion and submitted a Schofield affidavit, ex parte" }, { "docid": "23017693", "title": "", "text": "necessary where the documents were sought for the grand jury: This is not a case like Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973. ... The question there arose during the trial on the merits.... Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 ... is not in point. In that case the government, after trial on the merits, had conceded certain electronic surveillance. The question was whether the records of such surveillance should be examined in camera by the court.... The statements in those opinions relating to adversary proceedings were applicable to the situations there presented. They are not applicable to the grand jury proceedings with which we are concerned. 532 F.2d at 737. The Supreme Court has also recognized the difference between what is required at trial as opposed to in a grand jury proceeding: “Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). See also Matter of Special February 1977 Grand Jury, 570 F.2d 674 (7th Cir.), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Although some indictments have been returned and disposed of, the Grand Jury’s investigation is ongoing. The interest in maintaining secrecy is greatest when the grand jury is still conducting its investigation, although that interest is not eliminated even after the grand jury has completed its work. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). From our examination of the disputed documents, we, like the trial judge, are persuaded that the secrecy of the in camera documents should be preserved. Those documents contain the words of grand jury witnesses, the disclosure of which could affect the continued cooperation of those witnesses and chill or distort the future testimony of others. In these circumstances, the judge’s decision to view" }, { "docid": "32272", "title": "", "text": "lies in the sound discretion of the trial court.” Id. at 737. In particular, that determination can be made ex-parte and a “preliminary minitrial” is not necessary. Id. at 737-38. Furthermore, the prima facie foundation may be made by documentary evidence or. good faith statements by the prosecutor as to testimony already received by the grand jury. In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467 (emphasis added) (citations to the record omitted). Such expedited procedures do not violate due process. See In re Grand Jury Proceedings,. Thursday Special Grand Jury, 33 F.3d 342, 352-53 (4th Cir.1994); In re John Doe, Inc., 13 F.3d 633, 637 (2d Cir.1994). This framework is grounded in the importance of a properly functioning grand jury. As the Supreme Court has stated, “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frus: trate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); see also In re September 1975 Grand Jury Term, 532 F.2d at 737. Moreover, the reasons for keeping a tight lid on in camera documents containing grand jury testimony and on evidence gathered during criminal investigations are legion .and obvious. See, e.g., In re Grand Jury 95-1, 118 F.3d 1433, 1439 (10th Cir.1997). Accordingly, the district court has the discretionary authority to do as Intervenor requests, and we believe the court understood that authority. Intervenor points to the February 24, 1997, hearing to show that the court did not understand it had discretionary authority. There, the district court queried, “if I let you see the contents of [the govern- merit’s] showing, [aren’t you] just setting this up to get me involved in having the sort of mini trial on the criminal allegations that the courts have said I shouldn’t be involved in?” Appellant’s App. Vol. II at 240. Unfortunately for Intervenor, the court’s question implies that it understood it had authority, pursuant to the familiar Fed.R.Crim.P. 6(e), to make the submission available to" }, { "docid": "32271", "title": "", "text": "II at 227. IV. Rebuttal to Government’s Prima Facie Showing Intervenor next alleges that the district court erred because it believed it had no discretion (1) to disclose to Intervenor the government’s ex parte, in camera submission, and (2) to hear rebuttal evidence from Intervenqr as to thfe government’s prima facie showing of the crime-fraud exception. In In re Grand Jury Proceedings (Vargas), 723 F.2d 1461 (10th Cir.1983), we faced Intervenor’s present argument, minus the allegation of the district court’s misperception of its authority. We stated as follows: Petitioner ... argues that certain procedures must be followed, including an opportunity for the attorney and client to rebut the prima facie evidence and to be present at any hearing which is intended to establish such a prima facie foundation.. Petitioner misconstrues the law in this circuit. As this court held in its opinion In re September 1975 Grand Jury Term, 532 F.2d 734 (10th Cir.1976), “[t]he determination of whether the government shows a prima facie foundation in fact for the charge which results in the subpoena lies in the sound discretion of the trial court.” Id. at 737. In particular, that determination can be made ex-parte and a “preliminary minitrial” is not necessary. Id. at 737-38. Furthermore, the prima facie foundation may be made by documentary evidence or. good faith statements by the prosecutor as to testimony already received by the grand jury. In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467 (emphasis added) (citations to the record omitted). Such expedited procedures do not violate due process. See In re Grand Jury Proceedings,. Thursday Special Grand Jury, 33 F.3d 342, 352-53 (4th Cir.1994); In re John Doe, Inc., 13 F.3d 633, 637 (2d Cir.1994). This framework is grounded in the importance of a properly functioning grand jury. As the Supreme Court has stated, “[a]ny holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frus: trate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d" } ]

[ { "docid": "1448068", "title": "", "text": "the custom prevailing in the office of Collector Saunders for the purpose of making memoranda as to the examination and disposition of each case, as it was considered by the collector on the ship, on the last page of which list appears, “Tang Tung — son Quong Lee, born, Seattle, rejected.” Exhibit 4 contains the papers of Ah Toye, a Chinese fellow passenger with Tang Tun on the steamer Tacoma, which arrived at Port Townsend April 10, 1897. He was rejected on May 20, 1897, and on June 19, 1902, was admitted, one of his witnesses being Mr. S. F. Coombs, also a witness in the case of Tang Tun. Exhibit 5 is composed of the papers in the matter of Gin Goon, another fellow passenger of Tang Tun on the steamer Tacoma, arriving at Port Townsend April 10, 1897, and also rejected May 20, 1897. This exhibit also shows that Gin Goon was subsequently and in July, 1903, admitted upon a paper bearing an indorsement similar to that disclosed by Exhibit 1, showing the admission of Gin Goon at the time the records show him to have been rejected. Exhibit 6 contains the papers in the case of Teft Mun, still another fellow passenger of the appellee Tang Tun on the steamer Tacoma, arriving April 10, 1897. He also was rejected on the same day on which the appellee’s rejection is dated, May 25, 1897; nevertheless, on February 22, 1905, he was arrested on the premises of the Wah Chong Company, in Seattle, and presented to the officers a paper bear ing the alleged signature of J. C. Saunders, purporting to show his admission in April, 1897. The foregoing descriptions of Exhibits 1, 2, 3, 4, 5, and 6 are but the statements of their contents in the argument of the inspector, filed with the Secretary of Commerce and Labor. In the brief of the attorney for the applicants filed with the Secretary of Commerce and Labor, we find the following: “We find that the inspector in charge at Sumas found it necessary, after delivering what might he termed" } ]

[ { "docid": "15641288", "title": "", "text": "casually annulled.” An examination of the case, however, discloses that this statement was not based upon the failure of the authorities to overcome the presumption resulting from the return certificate, but upon the ground that the evidence relied upon by the immigration authorities to prove that the applicant was not one of -the co-partners in the partnership to which he claimed to belong was entirely insufficient to justify the rejection of his claim to admission.' See, also, Nagle v. Lim Foon (C. C. A.) 48 F.(2d) 51, and Horn Yuen v. U. S. (C. C. A.) 214 F. 57. In United States v. Chin Len, 187 F. 544, the Circuit Court of Appeals for the Second Circuit held that where there was an adjudication before the United States Commissioner, that the applicant was a citizen of the United States, born here, that when he subsequently went to China and returned, the immigration authorities had no right to ignore the effect of the Commissioner’s judgment until its invalidity was established. In the case of White v. Chan Wy Sheung (C. C. A.) 270 F. 764, the immigration authorities, although they had previously held that the father of the applicant was an American citizen, denied the applicant entry into the United States, and it was held that they were not bound by the previous decision that the appellant’s father was a citizen. In Chin Gim Sing v. Tillinghast (D. C.) 31 F.(2d) 763, District Judge Morton held that where a father had previously been adjudicated to be a citizen of the United States by the United States Commissioner, it was arbitrary and unreasonable to deny admission to one who is admitted to be his son. In that case the question involved was the effect of a commissioner’s decision. The same is true in Leung Jun v. U. S. (C. C. A.) 171 F. 413. Turning now to the decisions of the Supreme Court of the United States, we find that in Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 363, 56 L. Ed. 606, the court had under" }, { "docid": "13347049", "title": "", "text": "thereof, appellant’s father and appellant himself are citizens. Appellant’s father testified that appellant’s paternal grand father was Jung Foo Wan, who, it is conceded, was a citizen of the United States. Appellant, testifying as a witness for himself, denied that Jung Foo Wan was his paternal grandfather, and stated that his paternal grandfather was Jung Wing Hong. There is no evidence that Jung Wing Hong was a citizen. In view of this conflict, the board and the secretary held that appellant’s alleged citizenship was not established. The secretary’s decision denying appellant admission to the United States is final and conclusive upon the courts, unless it be shown that the proceedings were manifestly unfair or conducted in an unlawful or improper way, or that there was a manifest abuse of discretion. Ng Heu Yim v. Bonham (C.C.A.9) 79 F.(2d) 655, 656. There is no such showing in this case. Appellant’s contention that the board acted unfairly in accepting his testimony and rejecting that of his father scarcely merits serious consideration. The weight of the evidence and the credibility of the witnesses were for the board, not the court, to determine. Mui Sam Hun v. United States (C.C.A.9) 78 F.(2d) 612, 615. It was likewise for the board, not the court, to determine the weight to be given previous decisions of the immigration authorities recognizing the alleged citizenship of appellant’s father. Wong Chow Gin v. Cahill (C.C.A.9) 79 F.(2d) 854, 857, 859. There is no merit in appellant’s contention that the board acted unfairly in not directing the attention of appellant’s father to appellant’s testimony. Appellant’s father was not a party to these proceedings, and the board, therefore, owed him no duty whatsoever. The writ of habeas corpus was properly denied." }, { "docid": "10852792", "title": "", "text": "his son as a result of his marriage March 23, 1895, to Horn Shee; that three children were born as a result of this marriage, namely, Wong Woon, fourteen years of age, the applicant; Wong Ark, or Wong Dock, thirteen years of age, the present applicant, and Wong Jing or Wong Cheng, then aged five years. At that time Wong Fong Duck testified under oath that his testimony given in 1897 that he was not then married was false and given by reason of his having been informed that a marriage by a boy under twenty-one years of age was not legal in tho United States. At the time he gave that false testimony he had one son, Wong Woon. Wong Ark was horn after the father left China, the third son having boon bom during tho father’s next visit to China in 1904. The alleged father produced corroborating evidence-as to his marriage and the immigration authorities admitted Wong Woon as a son born of said marriage. In June, 1914, Wong Fong Duck departed for China and at that time stated that he had married onco only, to Horn Shee, who died May 26, 1909; that he had three sons, no daughters, and gave the names and ages as hereinbefore stated. In 1924, Wong Cheng, who was alleged to be the youngest son resulting from such marriage, applied for admission at San Francisco. In connection with his application which was granted, Wong Woon, previously admitted brother, and Wong Cheng, both testified that their mother, Horn Shee, was then living at their homo in China. February 6, 1929, the present applicant, Wong Duck, arrived from China at San Francisco and applied for admission. lie stated upon his application that his mother, Horn Shee, was still living in China and Wong Woon and Wong Cheng, previously admitted brothers, both testified at that time that their mother, Horn Sheo, was still living in China. After the three sons of Horn Shoe had all testified in 1929 that their mother was still living, their attention was callc-d to the fact that tho father, in" }, { "docid": "18415369", "title": "", "text": "42. * * * ” In the second cited case, Louie Hoy Gay v. Dulles, 9 Cir., 248 F.2d 421, the same language was quoted. . Substantially the same rule had previously announced in Ah Kong v. Dulles, D.C.N.J., 130 F.Supp. 546, 548, cited in the Delmore decision, . The pertinent language of the Mah Toi opinion roads as follows: . A certificate of identity issued by an immigration official in Seattle was also in-traduced in evidence. But this document, which pertained to the claimant’s father (as did the Oregon judgment referred to above), was held to be irrelevant because it did not deal with the father’s status at the time of the claimant’s birth. . In Wong Kam Chong v. Dmted States, supra, 111 F 2d at page 710, the court said that, where rebutting evidence is submitted, * * * it is for the trial court to determine from the whole body of evidence whether the alien has complied with the statutory requirement compelling him to ‘establish, by affirmative proof, to the satisfaction of such * * * judge * * * his lawful right to remain in the United States’. * * * ” In Lee Choy v. United States and Leong Kwai Yin v. United States, supra, (footnote 2) it was stated that the prima facie case stands until overcome by proof “tending to show” that the certificate was issued improvidently, or was fraudulontly obtained. In Yuen Boo Ming v. United States, 9 Cir., 103 F.2d 355, 358, it was stated that possession of a citisen’s return certificate “ * * * casts 011 the Bureau the burden of producing substantial evidence of alienage. * * ” See, also, Lum Mon Sing v. United States, 9 Cir., 124 F.2d 21, and Wong Chow Gin v. Cahill, 9 Cir., 79 F.2d 854. To be distinguished are cases such as Lau Ah Yew v. Dulles, 9 Cir., 257 F.2d 744, where the issue was not whether the board decision was the result of fraud or errol.; but whether the plaintiffi wag the person named in that decision. ." }, { "docid": "12357619", "title": "", "text": "is whether or not the latter granted a fair hearing and [sic] abused their discretion. * * *” Jue Yim Ton v. Nagle, 48 F.(2d) 752 (C. C. A. 9). “And if it does not affirmatively appear that the executive officers have acted in some unlawful or improper way and abused their discretion, their finding upon the question of citizenship must be deemed to be conclusive, and is not subject to review by the court.” Tang Tun v. Edsell, 223 U. S. 673, 675, 32 S. Ct. 359, 361, 56 L. Ed. 606. “The conclusions of administrative officers upon issues of fact are invulnerable in the courts, unless it can be said that they could not reasonably have been reached by a fair-minded man, and hence are arbitrary.” Chin Share Nging v. Nagle, 27 F.(2d) 848, 849 (C. C. A. 9). See, also, Chin Wing v. Nagle, 55 F.(2d) 609, 611 (C. C. A. 9); Haff v. Der Yam Min, 68 F.(2d) 626 (C. C. A. 9). Appellee cites cases to the effect that the testimony of the applicant as to his birthplace is not competent evidence because “he could not possibly know the fact.” Lee Sim v. U. S., 218 F. 432 (C. C. A. 2); Ark Foo v. U. S., 128 F. 697 (C. C A. 2); Ex parte Chin Him, 227 F. 131 (D. C. N. Y.). ' But this court has said, “The testimony of the witness as to the date and place of his birth is, of course, hearsay, but it is competent.” United States v. Wong Gong (C. C. A.) 70 F.(2d) 107. However, the question of the credibility is for the executive department. The Board had the applicant and his witnesses before it. “It is no indication of unfairness that his testimony was not credited. * * * In United States ex rel. Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590, the court said: ‘The Secretary of Labor was not obliged to believe this testimony. The government did not introduce any direct evidence to the contrary.’" }, { "docid": "15641289", "title": "", "text": "Chan Wy Sheung (C. C. A.) 270 F. 764, the immigration authorities, although they had previously held that the father of the applicant was an American citizen, denied the applicant entry into the United States, and it was held that they were not bound by the previous decision that the appellant’s father was a citizen. In Chin Gim Sing v. Tillinghast (D. C.) 31 F.(2d) 763, District Judge Morton held that where a father had previously been adjudicated to be a citizen of the United States by the United States Commissioner, it was arbitrary and unreasonable to deny admission to one who is admitted to be his son. In that case the question involved was the effect of a commissioner’s decision. The same is true in Leung Jun v. U. S. (C. C. A.) 171 F. 413. Turning now to the decisions of the Supreme Court of the United States, we find that in Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 363, 56 L. Ed. 606, the court had under consideration the right of a Chinese person to enter the United States where such entry had been denied by the immigration authorities. The applicant claimed to be a citizen of the United States. He claimed that he had returned to China in 1884 and remained until 1897, when, upon his return to the United States, he was admitted by the Collector of Customs after examination; that he returned to China in. 1905 for the purpose of marrying; and that upon his return with his wife seeking admission, was refused. It was found by the immigration authorities that the records of the Inspector of Customs showed that he had been denied admission in 1897, whereas the applicant had a certificate signed by the proper officer showing that he was allowed to enter. It will be observed that the court held that the discrepancy between , the records of the office of the Collector of Customs and the certificate indubitably issued by the Collector of Customs justified the immigration authorities in denying admission where, after considering whether" }, { "docid": "23148278", "title": "", "text": "Kuniyuki, 9 Cir., 189 F.2d 741; of refuses to allow a person claiming American citizenship to come to this country, Acheson v. Yee King Gee, 9 Cir., 184 F.2d 382; or where American citizens acting under claimed duress have filed with the Attorney General notices of their renunciation of citizenship and then later seek to have them set aside, McGrath v. Tadayasu Abo, 9 Cir., 186 F.2d 766. In none of the above cases is the § 903 action a trial de novo. There has not been anything tried by the Department of State or of Justice to be tried again as on appeal or review. We do not think the independence of the 903 action is lost in other cases where the denial of the “right or privilege” is preceded by a hearing at which findings are made and a decision reached. The right to citizenship is a priceless thing and Congress in enacting § 903 in 1940 well could have decided that citizenship should not be denied one possessing it, by an administrative proceeding such as 8 U.S.C.A. § 153, first enacted in 1917, in which the right to any counsel is denied and mere hearsay evidence which may be determinative is admissible, Gung You v. Nagle, 9 Cin, 34 F.2d 848; Jung Yen Loy v. Cahill, 9 Cir., 81 F.2d 809, and in which the finding as to citizenship is deemed final, United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040. At the trial below plaintiff and Wong Yem, his alleged father, a citizen, testified and the testimony they gave before the board of special inquiry was also admitted with the consent of the plaintiff. From the testimony of these two witnesses the court well could have found that the plaintiff was the son of Wong Yem. The court, proceeding on its theory that the action was a review de novo of the board’s order treated the testimony of one Wong Gong, an alleged uncle of the plaintiff, as before it and based its adverse decision upon that testimony. We think Wong" }, { "docid": "10852793", "title": "", "text": "China and at that time stated that he had married onco only, to Horn Shee, who died May 26, 1909; that he had three sons, no daughters, and gave the names and ages as hereinbefore stated. In 1924, Wong Cheng, who was alleged to be the youngest son resulting from such marriage, applied for admission at San Francisco. In connection with his application which was granted, Wong Woon, previously admitted brother, and Wong Cheng, both testified that their mother, Horn Shee, was then living at their homo in China. February 6, 1929, the present applicant, Wong Duck, arrived from China at San Francisco and applied for admission. lie stated upon his application that his mother, Horn Shee, was still living in China and Wong Woon and Wong Cheng, previously admitted brothers, both testified at that time that their mother, Horn Sheo, was still living in China. After the three sons of Horn Shoe had all testified in 1929 that their mother was still living, their attention was callc-d to the fact that tho father, in 1914, had stated that his wife, Horn Shee, was dead and fixed the date of her death at five years previous to the time of his departure from San Francisco in 1914, namely, May 26, 1909. They were unable to account for the statement of their father that his wife had died in 1909. The Board of Special Inquiry passed upon the evidence for the Department of Labor and recommended that the applicant be denied entry and the Secretary of Labor approved this report. The father had stated in connection with his entry or departure from tho United States on two previous occasions that the second son, Wong Dock, was born November 14, 1897, but the applicant and his corroborating witnesses, his two brothers, fix his date of birth as January 1, 1898. Tho applicant was bom a little over nine months after his alleged father left home in China. When Wong Fong Duck returned to China in 1904, the boys were seven and six years old, respectively. He left a year and seven months" }, { "docid": "13347042", "title": "", "text": "Li Bing Sun v. Nagle, 56 F.(2d) 1000 (C.C.A.9); Kjar v. Doak, 61 F.(2d) 566 (C.C.A.7). Furthermore, the decision of the immigration authorities in originally admitting appellant’s father as a citizen and confirming that decision upon succeeding re-entries of the father is not res adjudicata with respect to the petition for entry by appellant. White v. Chan Wy Sheung (C.C.A.) 270 F. 764. Nor are we in accord with appellant’s earnest advocacy of the contention to the effect that the record presents no evidence disputing an alleged presumption in favor of appellant’s father’s American- citizenship ; on the contrary, the record is replete with evidence from the lips of appellant flatly contradicting such presumption. The effort to measure the probative value, of previous administrative decisions with respect to the status of appellant’s father, as against the value of appellant’s testimony, seems to us to be directed to a consideration of the weight of evidence. Such consideration is for the administrative officials and will not be reviewed by the courts unless the conduct of such officers reflects unfairness. Kumaki Koga et ux. v. Berkshire, 75 F.(2d) 820 (C.C.A.9); Tang Tun v. Edsell, 223 U.S. 673, 681, 32 S.Ct. 359, 363, 56 L.Ed. 606, 610; and see Wong Chow Gin v. Cahill (C.C.A.9) 79 F.(2d) 854. Flynn ex rel. Lum Hand v. Tillinghast (C.C.A.) 62 F.(2d) 308, 309, cited by appellant, does not support appellant’s argument, for it appears therein that the testimony of that applicant’s father, being entirely consistent in itself, “was not contradicted in any manner.” In Young Len Gee v. Nagle (C.C.A.) 53 F.(2d) 448, also cited by appellant, there was no contradiction of the petitioner’s testimony; the discrepancies relied upon by the examining officials in that case related to matters not only trivial but entirely collateral. Neither case affords a precedent for this appellant. Applicant, if he prevails, must do so upon the theory that his father, Jung Goey Fook, is the son of Jung Foo Wan who was concededly an American citizen, for the record is devoid of any evidence of the American citizenship of Jung Wing" }, { "docid": "3022558", "title": "", "text": "of Wong Wing Gong, a prior landed brother of Wong Wing Sin, who was bom January 9, 1899. Wong Wing Gong was admitted to'the United States as an American citizen in July, 1913. He has made several trips to and from China. Wong Wing You,.the alleged second son of the petitioner, was admitted as an American citizen in July, 1913, When Wong Wing Gong applied for admission to the United States in March, 1919, upon returning from a visit to China, his application was denied by the Bureau of Immigration at Washington, and he departed for China. Upon his return, August 4, 1921, he was again denied admission by a Board of Special Inquiry, but, upon appeal taken to the Secretary of Labor, he was admitted. Thus, two older sons of the petitioner have been admitted to the United States as citizens thereof. The present applicant for admission, Wong Wing Sin, is aged sixteen, and is claimed to be the fourth son of the applicant, bom September 14, 1915. One of the discrepancies relied upon by the immigration authorities in rejecting the application of Wong Wing Sin for admission is that, when Wong Wing Gong arrived from China October 15, 1930, he stated that he had three sons, Wong Sing Ming, aged 10, bom December 21, 1921; Wong You Ming, aged 4, bom December 13, 1927; and Wong Puey Ming, aged 2, bom March 15, 1929'. Upon the present application for admission of his alleged brother, however, Wong Wing Gong reverses the age and date of birth of the last two children, giving the age of Wong Puey Ming as 4, and Wong You Ming as 2. He was examined somewhat at length in regard to his statement, and his attention was called to the testimony he had given at the time of his landing in 1930, and he explained that his statement m^ide at that time must have been incorrectly reported. On the other hand, the petitioner, who is admittedly the father of Wong-Wing Gong, testified on this hearing to the same names and the same order of birth" }, { "docid": "21516956", "title": "", "text": "particular transactions, or of his own conduct, as to discredit his whole story.’ ” See, also, Weedin v. Lee Gock Doo (C. C. A.) 41 F.(2d) 129; Siu Say v. Nagle (C. C. A.) 295 F. 676; Tang Tun v. Edsell, 223 U. S. 673, 681, 32 S. Ct. 359, 56 L. Ed. 606. 3. The alleged brother testified that while he was in China from August, 1925, to January, 1928, and from November, 1929, until he returned to the United States with appellant, he stayed continuously in the home village; that the mother of the children, who lived in one of the alleged father’s houses, mentioned in connection with the conflict discussed above, was dead when' he arrived in China in 1925. Appellant testified that this woman is now living in the house which adjoins his own, and that he saw her there a week before he left the village for the United States. Such discrepancies are of the sort that tend to show that the appellant was not a member of the Horn family. Lee How Ping v. Nagle (C. C. A.) 36 F.(2d) 582; Toy Wing Yow v. Nagle, supra; Lim Wun v. Nagle (C. C. A.) 52 F.(2d) 396; Louie Hing Fong v. Nagle (C. C. A.) 53 F.(2d) 739; Wong Wing Sin v. Nagle, 54 F.(2d) 321; Louie Lung Gooey v. Nagle (C. C. A.) 49 F.(2d) 1016. 4. This discrepancy relates to an ancient Chinese custom of shaving the heads of infants. Appellant’s alleged brother testified that he has two sons, born in September, 1926, and October, 1927, respectively (he himself was in China from 1925 to 1928), and that appellant’s younger son was also born while the witness was in China: He further testified that the heads of these three children were not shaved, and that the practice of shaving the heads of infants is no longer followed in his village. Appellant testified that it has been the custom in his village to shave the heads of infants as long as he can remember, and further that the heads of these three infants" }, { "docid": "13347045", "title": "", "text": "government. Wong Foo Gwong v. Carr, 50 F.(2d) 300, 362 (C.C.A.9). We are not unmindful of the duty of the examining officials to view the testimony as a whole, Chung Pig Tin v. Nagle (C.C.A.) 45 F.(2d)’484, and that slight discrepancies should be disregarded. Young Len Gee v. Nagle, supra. It avails appellant little to argue under the authority of Grant Brothers Construction Co. v. U. S., 232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776, that the prior action of the immigration officers, in affirming the citizenship of appellant’s father, has prima facie value and that such actions have a status like unto judgments, for the record shows that the prior decisions were in evidence, were considered, and were given substantial value, but that their probative effect was overcome by the convincing evidence of appellant’s positive testimony. Wong Chow Gin v. Cahill, supra. When we consider the value to be placed upon the prior statements of appellant’s father and appellant’s alleged uncles, we cannot disregard the fact that such statements were made at a time and under circumstances when they had a vital interest i'n proving descent from Jung Foo Wan; hence we are unable to say that the failure of departmental officials to accord the weight thereto now urged by appellant was error. Tulsidas v. Insular Collector of Customs, 262 U.S. 258, 43 S.Ct. 586, 588, 67 L.Ed. 969, 974; Tang Tun v. Edsell, supra. Evidence to the effect that appellant’s father was registered in this country under the Conscription Act does not disclose if he registered as a citizen or an alien. The weight of such evidence was for consideration by the examining officials;. the record does not show any abuse of discretion in connection therewith. We think it immaterial that appellant’s father was unaware, prior to the termination of the hearing, that appellant had testified as he did with respect to his paternal grandfather. The real question is: Was Jung Gooey Fook deprived of an opportunity to refute or explain the testimony given at said hearing by his son or to inspect the record made at" }, { "docid": "3022557", "title": "", "text": "WILBUR, Circuit Judge. This is an appeal from a denial of a petition of Wong Guey At for writ of habeas coiqms for the petitioner’s alleged son Wong Wing Sin, who was denied admission to the United States by the immigration authorities and ordered returned to China. The petitioner is an Americañ citizen, and for that reason claims that his alleged son Wong Wing Sin, bom in China, is entitled to admission as an American citizen. He was denied admission because the testimony of petitioner and his alleged sons showed discrepancies which in the judgment of the immigration authorities justified the rejection of their testimony. We are here dealing with the familiar question as to whether or not such rejection was so arbitrary as to have deprived the applicant for admission of a fair trial. When the alleged father, Wong Guey At, returned from China on January 7, 1900, he stated that he was not married, although he now claims that he was married on March 6, 1898, to the mother of the applicant and of Wong Wing Gong, a prior landed brother of Wong Wing Sin, who was bom January 9, 1899. Wong Wing Gong was admitted to'the United States as an American citizen in July, 1913. He has made several trips to and from China. Wong Wing You,.the alleged second son of the petitioner, was admitted as an American citizen in July, 1913, When Wong Wing Gong applied for admission to the United States in March, 1919, upon returning from a visit to China, his application was denied by the Bureau of Immigration at Washington, and he departed for China. Upon his return, August 4, 1921, he was again denied admission by a Board of Special Inquiry, but, upon appeal taken to the Secretary of Labor, he was admitted. Thus, two older sons of the petitioner have been admitted to the United States as citizens thereof. The present applicant for admission, Wong Wing Sin, is aged sixteen, and is claimed to be the fourth son of the applicant, bom September 14, 1915. One of the discrepancies relied upon" }, { "docid": "10852794", "title": "", "text": "1914, had stated that his wife, Horn Shee, was dead and fixed the date of her death at five years previous to the time of his departure from San Francisco in 1914, namely, May 26, 1909. They were unable to account for the statement of their father that his wife had died in 1909. The Board of Special Inquiry passed upon the evidence for the Department of Labor and recommended that the applicant be denied entry and the Secretary of Labor approved this report. The father had stated in connection with his entry or departure from tho United States on two previous occasions that the second son, Wong Dock, was born November 14, 1897, but the applicant and his corroborating witnesses, his two brothers, fix his date of birth as January 1, 1898. Tho applicant was bom a little over nine months after his alleged father left home in China. When Wong Fong Duck returned to China in 1904, the boys were seven and six years old, respectively. He left a year and seven months later and did not return to China until 1914, where he died April 16, 1915. It must be conceded that it would be unreasonable and unfair for the immigration authorities, after fully investigating the discrepancy between the statement of the alleged father in 1897, when he stated that he was unmarried and his later statement made in 1909 in an effort to secure the entry of his son Wong Woon, and having determined that Wong Woon was the legitimate son of the marriage of the father and Horn Shee, and after having reached a similar conclusion in 1924 on the admission of Wong Cheng, and alleged brother, to turn about and on the| same evidence and without any additional circumstances to hold that no such marriage occurred, and for that reason deny admission to the alleged second son, but we have here, the additional fact that the father stated that, his wife died in 1909, whereas, the applicant', and his witnesses ail testified that their mother is still living.' No explanation is offered. by the" }, { "docid": "13347043", "title": "", "text": "reflects unfairness. Kumaki Koga et ux. v. Berkshire, 75 F.(2d) 820 (C.C.A.9); Tang Tun v. Edsell, 223 U.S. 673, 681, 32 S.Ct. 359, 363, 56 L.Ed. 606, 610; and see Wong Chow Gin v. Cahill (C.C.A.9) 79 F.(2d) 854. Flynn ex rel. Lum Hand v. Tillinghast (C.C.A.) 62 F.(2d) 308, 309, cited by appellant, does not support appellant’s argument, for it appears therein that the testimony of that applicant’s father, being entirely consistent in itself, “was not contradicted in any manner.” In Young Len Gee v. Nagle (C.C.A.) 53 F.(2d) 448, also cited by appellant, there was no contradiction of the petitioner’s testimony; the discrepancies relied upon by the examining officials in that case related to matters not only trivial but entirely collateral. Neither case affords a precedent for this appellant. Applicant, if he prevails, must do so upon the theory that his father, Jung Goey Fook, is the son of Jung Foo Wan who was concededly an American citizen, for the record is devoid of any evidence of the American citizenship of Jung Wing Hong, who appellant says is his paternal grandfather. We cannot give any consideration to the argument that the previous administrative decisions have any probative value to show citizenship through Jung Wing Hong, for those records were made upon the theory of descent from Jung Foo Wan. Appellant will not be heard to now change the theory of his case. Tsugio Miyazono v. Carr, 53 F.(2d) 172, 174 (C.C.A.9). The interesting argument is made by appellant that there may have been two individuals, each answering the same description as to name, age, and place of birth, and that one was the son of Jung Foo Wan, the other being the son of Jung Wing Hong. This argument might have been made before the Special Board; in fact, it appears that the board did consider such a possibility. We cannot say as a matter of law that its failure to admit appellant because thereof was error, for in any view of the record before us, the burden of proof was upon the appellant and not upon the" }, { "docid": "10852791", "title": "", "text": "WILBUR, Circuit Judge. This is an appeal from an order of the court below granting a petition for a writ of habeas corpus, and ordering that appellee Wong Dock be discharged from the custody of the Commissioner of Immigration. The appellee claims the right to be admitted to the United States as tho son of Woitg Fong Duck, called also Wong Ah Sing and Wong Fon Duck, and who will be hereinafter referred to as the father, who was born in San Francisco in 1879. Wong Fong Duck was taken to China by his mother in 1880 and returned to San Francisco April 8,1897, seeking admission by reason of his United States citizenship. At that time he testified he was not married. He was admitted May 3, 1897. On May 19, 1904, he left San Francisco for China, returning December 17, 1905. In May, 1909, Wong Woon, claiming to be a son of Wong Fong Duck, arrived from China and in connection with his application for admission Wong Fong Duels: testified that Wong Woon was his son as a result of his marriage March 23, 1895, to Horn Shee; that three children were born as a result of this marriage, namely, Wong Woon, fourteen years of age, the applicant; Wong Ark, or Wong Dock, thirteen years of age, the present applicant, and Wong Jing or Wong Cheng, then aged five years. At that time Wong Fong Duck testified under oath that his testimony given in 1897 that he was not then married was false and given by reason of his having been informed that a marriage by a boy under twenty-one years of age was not legal in tho United States. At the time he gave that false testimony he had one son, Wong Woon. Wong Ark was horn after the father left China, the third son having boon bom during tho father’s next visit to China in 1904. The alleged father produced corroborating evidence-as to his marriage and the immigration authorities admitted Wong Woon as a son born of said marriage. In June, 1914, Wong Fong Duck departed for" }, { "docid": "23148279", "title": "", "text": "proceeding such as 8 U.S.C.A. § 153, first enacted in 1917, in which the right to any counsel is denied and mere hearsay evidence which may be determinative is admissible, Gung You v. Nagle, 9 Cin, 34 F.2d 848; Jung Yen Loy v. Cahill, 9 Cir., 81 F.2d 809, and in which the finding as to citizenship is deemed final, United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040. At the trial below plaintiff and Wong Yem, his alleged father, a citizen, testified and the testimony they gave before the board of special inquiry was also admitted with the consent of the plaintiff. From the testimony of these two witnesses the court well could have found that the plaintiff was the son of Wong Yem. The court, proceeding on its theory that the action was a review de novo of the board’s order treated the testimony of one Wong Gong, an alleged uncle of the plaintiff, as before it and based its adverse decision upon that testimony. We think Wong Gong’s testimony was not before the court merely because it was taken in the proceeding before the board of special inquiry. The defendant appellee further contends that Wong Gong’s testimony is admissible hearsay under certain exceptions to the hearsay rule. We think not. Wong Gong was in San Francisco at the time of the trial and available to be summoned as a witness. Hence his testimony before the Board of Special Inquiry, though between the same parties and on the same issue, is not admissible as the exception to the hearsay rule where such a witness is dead or otherwise not available. Smythe v. Inhabitants of New Providence Township, 3 Cir., 263 F. 481. Admission of the hearsay testimony of the alleged uncle is also sought under 28 U.S.C. § 1733: “§ 1733. Government records and papers ; copies “(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same" }, { "docid": "21672376", "title": "", "text": "in progress. “There is nothing in the petition in the present case to indicate that at the final hearing all the testimony taken in prior hearings was not considered by three members of the board in disposing of the question of the appellant’s right to enter the United States.” Hom Moon’Ong v. Nagle, 32 F.(2d) 470, 472 (C. C. A. 9). See, also, Dong Ting Fun v. Nagle, 5 F.(2d) 310 (C. C. A. 9). Appellant contends that applicant was further denied a fair hearing in that the members of the Board, after examining the applicant and his alleged father together, asserted that there was some resemblance in the physi cal appearance of the two, but refused to make that a basis of admission. “Clearly resemblance does not necessarily establish the relationship here asserted, for not infrequently there is a strong resemblance between more distant relatives.” Wong Som Yin v. Nagle, 37 F.(2d) 893, 894 (C. C. A. 9). Appellant maintains also that the Board of Special Inquiry acted arbitrarily in reaching its conclusions, but we find nothing in the record to support this contention. We cannot too often repeat that, in immigration cases of this character brought before us for review, the question is not whether we, with the same facts before us originally, might have found differently from the Board; rather is it a question of determining simply whether or not the hearing was conducted with due regai-d to those rights of the applicant that are embraced in the phrase “due process of law.” Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 363, 56 L. Ed. 606. Even if we were firmly convinced that the Board’s decision was wrong, if it were shown that they had not acted arbitrarily, but had reached their conclusions after a fair consideration of all the facts presented, we should have no recourse. “The denial of a fair hearing cannot be established by proving that the decision was wrong.” Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 203, 52 L. Ed. 369. The record" }, { "docid": "13347044", "title": "", "text": "Hong, who appellant says is his paternal grandfather. We cannot give any consideration to the argument that the previous administrative decisions have any probative value to show citizenship through Jung Wing Hong, for those records were made upon the theory of descent from Jung Foo Wan. Appellant will not be heard to now change the theory of his case. Tsugio Miyazono v. Carr, 53 F.(2d) 172, 174 (C.C.A.9). The interesting argument is made by appellant that there may have been two individuals, each answering the same description as to name, age, and place of birth, and that one was the son of Jung Foo Wan, the other being the son of Jung Wing Hong. This argument might have been made before the Special Board; in fact, it appears that the board did consider such a possibility. We cannot say as a matter of law that its failure to admit appellant because thereof was error, for in any view of the record before us, the burden of proof was upon the appellant and not upon the government. Wong Foo Gwong v. Carr, 50 F.(2d) 300, 362 (C.C.A.9). We are not unmindful of the duty of the examining officials to view the testimony as a whole, Chung Pig Tin v. Nagle (C.C.A.) 45 F.(2d)’484, and that slight discrepancies should be disregarded. Young Len Gee v. Nagle, supra. It avails appellant little to argue under the authority of Grant Brothers Construction Co. v. U. S., 232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776, that the prior action of the immigration officers, in affirming the citizenship of appellant’s father, has prima facie value and that such actions have a status like unto judgments, for the record shows that the prior decisions were in evidence, were considered, and were given substantial value, but that their probative effect was overcome by the convincing evidence of appellant’s positive testimony. Wong Chow Gin v. Cahill, supra. When we consider the value to be placed upon the prior statements of appellant’s father and appellant’s alleged uncles, we cannot disregard the fact that such statements were made at a" }, { "docid": "10852795", "title": "", "text": "later and did not return to China until 1914, where he died April 16, 1915. It must be conceded that it would be unreasonable and unfair for the immigration authorities, after fully investigating the discrepancy between the statement of the alleged father in 1897, when he stated that he was unmarried and his later statement made in 1909 in an effort to secure the entry of his son Wong Woon, and having determined that Wong Woon was the legitimate son of the marriage of the father and Horn Shee, and after having reached a similar conclusion in 1924 on the admission of Wong Cheng, and alleged brother, to turn about and on the| same evidence and without any additional circumstances to hold that no such marriage occurred, and for that reason deny admission to the alleged second son, but we have here, the additional fact that the father stated that, his wife died in 1909, whereas, the applicant', and his witnesses ail testified that their mother is still living.' No explanation is offered. by the sons or by counsel for the statement by the father in 1914 that his wife had died five years previously. It appears from the record that Horn Shee, the mother of the applicant, was able to write and that she has communicated with her sons by letter. The statement of the father would seem to indicate that he had not heard from his wife for five years and that he had received information which led him to believe that she was dead. It is possible that the immigration authorities may have misunderstood the state, ment made by the father when he left for China in 1914, but the fact that the record not only shows the direct statement that she was dead, but fixes the date of death, makes it difficult to conclude that this was a mere mistake or inadvertence in the recording of the statement of the father. If the statement of the father made in 1914 is accepted as true it follows that the three sons of Horn Shee, who is still" } ]

[ { "docid": "22323166", "title": "", "text": "for burglary in the first degree and criminal sexual assault in the first degree are violent offenses under § 16-1-60. Specifically, petitioner argued that under the Eighth Amendment his parole ineligibility was “ ‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than death,’ ” Skipper v. South Carolina, 476 U. S. 1, 4-5 (1986), quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion), and that therefore he was entitled to inform the jury of his parole ineligibility. He also asserted that by withholding from the jury the fact that it had a life-without-parole sentencing alternative, the trial court impermissibly diminished the reliability of the jury’s determination that death was the appropriate punishment. Cf. Beck v. Alabama, 447 U. S. 625 (1980). Finally, relying on the authority of Gardner v. Florida, 430 U. S. 349 (1977), petitioner argued that his due process right to rebut the State’s argument that petitioner posed a future danger to.society had been violated by the trial court’s refusal to permit him to show that a noncapital sentence adequately could protect the public from any future acts of violence by him. We express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment. Of course, the fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger. The State is free to argue that the defendant will pose a danger to others in prison and that executing him is the only means of eliminating the threat to the safety of other inmates or prison staff But the State may not mislead the jury by concealing accurate information about the defendant’s parole ineligibility. The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution’s arguments of future dangerousness with the fact that he is ineligible for parole under state law. In this regard, the State emphasizes that no statute prohibits petitioner’s eventual release into society. While this technically may be" } ]

[ { "docid": "6275458", "title": "", "text": "v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). B. The Simmons issue. Woods finally attempts to extend the jury instruction requirement of Sim mons v. South Carolina, supra, to cover his circumstance, citing only that “[s]uch an instruction is required to comport with due process.” By that statement, we infer that Woods raises this argument under color of the Fourteenth Amendment. Woods argues that Simmons, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) hold that where future dangerousness is at stake, a jury must be told of the fact that the prisoner, if given a life sentence rather than a death sentence, would serve a significant period of incarceration before he could be released on parole. He blatantly misstates the meaning of those decisions. Simmons requires that where a defendant’s future dangerousness is at issue and state law prohibits his release on parole after being sentenced to life imprisonment, the jury must be informed that the defendant is parole-ineligible. 512 U.S. at 171, 114 S.Ct. 2187 (“[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole”). The pertinent aspect of that ruling as it applies to Woods’s case is that publishing such information to the jury is required only where state law provides for life imprisonment without possibility of parole as an alternative to the death penalty. Skipper held that a state’s refusal to admit a defendant’s evidence of good behavior in prison during the punishment phase of his capital trial prevented the presentation of relevant mitigating evidence to the jury in violation of the Eighth, 476 U.S. at 4, 106 S.Ct. 1669, and Fourteenth, id. at 5 n. 1, 106 S.Ct. 1669, Amendments. In O’Dell, the Court held that the rule of Simmons was not a “new rule” within the meaning of Teague v. Lane, supra. Neither did it" }, { "docid": "14233614", "title": "", "text": "test to Mor-va’s case, we find no constitutional violation warranting habeas relief under § 2254(d). The court first addressed the three cases on which Morva relied in'support of his claim — Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1. (1986), and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) — and .found they did not dictate the result he urged. Morva I, 683 S.E.2d at 564-66. The court then discussed Virginia precedent on the relevance of prison-environment evidence to a future-dangerousness assessment and, finding irrelevant and therefore inadmissible an “essential” part of Dr. Cunningham’s proffered testimony (i.e., his testimony regarding prison life, prison security, and statistics on similarly situated defendants’ instances of violence in prison), concluded that “the circuit court did not err or abuse its discretion in denying [Morya’s] motion” because Morva did not satisfy the particularized-need test. Id. at 565-66. The Supreme Court of Virginia’s conclusion that Gardner,' Skipper, and Simmons do not support the constitutional rule Mor-va asserts is neither contrary to, n'or-involves an unreasonable application of, clearly established federal law. Gardner concerned a court’s imposition of the death penalty on the basis of a confidential pre-sentence report that was never disclosed to the defense. 430 U.S. at 353, 97 S.Ct. 1197 (plurality opinion). Vacating and remanding the case for resentencing, the U.S. Supreme Court announced that the imposition of a' death sentence “on • the basis of information which [the defendant] had no opportunity to deny or explain” is unconstitutional. Id. at 362, 97 S.Ct. 1197 (plurality .opinion) (emphasis added) (finding a due process violation); id. at 364, 97 S.Ct. 1197 (White, J., concurring in the judgment) (finding-an Eighth Amendment violation); id. (Brennan, J., concurring ih part-and dissenting in part) (joining the plurality’s due process reasoning). The Court relied on this general principle years later in Skipper, when it considered a capital defendant’s right to present mitigating evidence regarding future dangerousness when the prosecution asserts that aggravating factor, lest the defendant be" }, { "docid": "7507551", "title": "", "text": "criminal acts of violence in the future, but whether he would.” Id. It determined that evidence regarding the general nature of prison life was not relevant to the particular facts of the defendant’s history and background and the circumstances of his offense, even when offered in rebuttal to evidence of future dangerousness. Id. Because this issue was adjudicated on the merits in state court, pursuant to § 2254(d) I may grant relief on Bell’s claims only if he shows either that the state court adjudication resulted in a decision that was contrary to or involved an unreasonable application of federal law, as determined by the United States Supreme Court, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. I find that Bell meets neither standard, that the Supreme Court of Virginia’s adjudication was reasonable, and that I must deny relief. First, Bell asserts that Virginia’s case law on prison conditions evidence is contrary to clearly established federal law, namely Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Bell is correct in asserting that Supreme Court precedent establishes for capital defendants a right to present mitigating evidence relating to their character, record, or offense to the sentencing body. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). While Bell characterizes this right as “broad,” the Supreme Court has limited permissible mitigation evidence to that which is relevant and related to “a defendant’s character or record and any ... circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); see Eddings, 455 U.S. at 110, 102 S.Ct. 869. In Skipper v. South Carolina, the Supreme Court found a violation of the right to present mitigation evidence where the state court excluded testimony by two jailers and one “regular visitor” that the defendant had made a “good adjustment” to life in jail during his seven months of incarceration. 476 U.S. at 6, 106 S.Ct. 1669. The Court found that" }, { "docid": "19593625", "title": "", "text": "process because in a death penalty case, he \"must be allowed to present rebuttal evidence.\" Appellant's Br. 24. After our remand in Porter II , this court decided Morva v. Zook , which held on § 2254(d) review that a Virginia state court's decision-that the defendant, Morva, had no due process right to appointment of a prison risk-assessment expert because he did not make the required particularized showing-was not contrary to or an unreasonable application of clearly established federal law. See 821 F.3d 517, 524-25 (4th Cir. 2016). Morva controls this argument. Quite simply, \"the U.S. Supreme Court has never addressed a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 524. As Morva explains, two key cases upon which Appellant relies, Skipper v. South Carolina , 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Simmons v. South Carolina , 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), are inapposite. In Skipper , the Supreme Court held that Skipper, a capital defendant, was entitled to present mitigating evidence to the jury about his good behavior for the seven months he spent in jail awaiting trial. See 476 U.S. at 4, 106 S.Ct. 1669. And in Simmons , the Court held that \"[w]here the state puts future dangerousness at issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury ... that he is parole ineligible.\" 512 U.S. at 177-78, 114 S.Ct. 2187 (O'Connor, J., concurring in the judgment). As we stated in Morva , these cases \"do not clearly establish a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 526. Appellant sought to introduce the same type of evidence as Morva, and indeed, the very same expert, Dr. Cunningham, who would take the defendant's history and place it in a broader context to show his likelihood of future dangerousness. Indeed, Appellant's motion for appointment of Dr. Cunningham describes his use of \"context and statistical and actuarial data\" to come up" }, { "docid": "7507547", "title": "", "text": "from objecting to avoid irritating the jury is a standard trial tactic,” I find that trial counsel in the instant case would not be deficient under Strickland in any event. Id. Furthermore, even if this argument was improper, Bell did not suffer any prejudice as a result. The prosecutor’s comments did not “so infect[ ] the [proceeding] with unfairness as to make the resulting [sentence] a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The Supreme Court of Virginia found that “the trial court made it clear to the jury that counsel’s closing argument was not evidence,” and thus any risk of undue prejudice was minimized and petitioner’s ineffective assistance claim relating to the closing argument must fail. Bell II, slip op. at 30. E. Claim V — Future Dangerousness. Bell claims that the jury’s assessment of future dangerousness violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments and thus entitles him to habeas relief from this court. Bell cites five separate reasons why the jury’s assessment regarding future dangerousness was flawed. I review each in turn. 1. Prison Conditions Expert. First, Bell asserts that the trial court denied him the right to put on evidence at sentencing from a prison expert on prison security and conditions, and thereby violated clearly established Supreme Comb precedent and disabled Bell from proving that his imprisonment for life in a “super-max” facility would create no future danger to society. Bell had secured an expert, James E. Aiken, a penologist and prison administrator, and sought to introduce his testimony for the purpose of rebutting the state’s evidence of Bell’s future dangerousness. The trial court excluded Aiken’s testimony as irrelevant to mitigation. Bell raised this issue in his direct appeal to the Supreme Court of Virginia, which found that the evidence Bell sought to introduce was of the same kind deemed not relevant to the future dangerousness inquiry in Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872 (2001), and Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642 (1999), because it was" }, { "docid": "14233619", "title": "", "text": "States are free to structure and shape consideration of mitigating evidence____’ ” (second alteration in original)). Thus, the Supreme .Court of Virginia did not unreasonably apply U.S. Supreme Court precedent by deeming irrelevant evidence that did not relate specifically to Morva’s character, background, criminal record, or the circumstances of his offense — i.e., evidence regarding general prison life and security offered to show that Morva’s “opportunities to commit criminal acts of violence in the future would be severely limited in a maximum security prison.” Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872, 893 (2001). Finally, the Supreme Court of Virginia did not unreasonably decide the facts. Morva contends otherwise, but he does not identify the alleged factual error. We assume he takes issue with the court’s finding that the inadmissible evidence of general prison life and security was “essential” to Dr. Cunningham’s proffered testimony. Morva I, 683 S.E.2d at 566. But Dr. Cunningham’s own statements to the circuit court compel this finding. In his letter, he wrote that an individualized prison-risk assessment “is only meaningful if it takes into account the person’s future setting, if known, and the frequency of serious violence by people with similar characteristics in similar settings.” J;A. 176. His declaration also noted that the proffered group-statistical data and prison-environment evidence are “necessary” and “critically important” to a “reliable violence risk assessment.” J.A. 145-46, Accordingly, we' hold that Morva’s prison-risk-assessment claim does not warrant federal habeas relief. B. Next we consider Morva’s nohdefaulted ineffective-assistance-of-counsel claims. First we determine the appropriate standard of review: Then we turn to the merits. 1. The- district court applied § 2254(d) to Morva’s nondefaulted claims, and we review that decision de novo. Gordon, 780 F.3d at 202. For AEDPA’s deferential standard to apply to the state post-conviction-relief court’s dismissal of these claims, the court’s 'decision must qualify as an “adjudication] on the merits” under § 2254(d); otherwise, de novo review is proper. Id. (alteration in original) (quoting § 2254(d)). “Whether a claim has been adjudicated on the merits is a case? specific inquiry,” Winston v. Pearson (Winston II), 683 F.3d 489," }, { "docid": "14233618", "title": "", "text": "The court’s classification of prison-environment evidence as ..irrelevant and therefore inadmissible is not unreasonable under U.S., Supreme Court precedent. Nor is the court’s similar determination regarding-statistical evidence of similarly situated inmates and instances of prison violence. A defendant’s. constitutional right to present mitigating evidence related to his character,- '.criminal history, and the circumstances of his offense does not upset a state court’s broad discretion in determining the admissibility of other, nonindi-vidualized evidence. See Lockett v. Ohio, 438 U.S. 586, 604 & n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion) (“Nothing in this opinion limits the tradi tional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.”); see also Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (“[Lock-ett and its progeny] do not bar a State from guiding the sentencer’s consideration of mitigating evidence. Indeed, we have held that ‘there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence____’ ” (second alteration in original)). Thus, the Supreme .Court of Virginia did not unreasonably apply U.S. Supreme Court precedent by deeming irrelevant evidence that did not relate specifically to Morva’s character, background, criminal record, or the circumstances of his offense — i.e., evidence regarding general prison life and security offered to show that Morva’s “opportunities to commit criminal acts of violence in the future would be severely limited in a maximum security prison.” Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872, 893 (2001). Finally, the Supreme Court of Virginia did not unreasonably decide the facts. Morva contends otherwise, but he does not identify the alleged factual error. We assume he takes issue with the court’s finding that the inadmissible evidence of general prison life and security was “essential” to Dr. Cunningham’s proffered testimony. Morva I, 683 S.E.2d at 566. But Dr. Cunningham’s own statements to the circuit court compel this finding. In his letter, he wrote that an individualized prison-risk assessment “is only" }, { "docid": "14233613", "title": "", "text": "the subject which necessitates the assistance of the expert is ‘likely to be a significant factor in his defense,’ and that he will be prejudiced by the lack of expert assistance.” 252 Va. 203, 476 S.E.2d 920, 925 (1996) (citation omitted) (quoting Ake, 470 U.S. at 82-83, 105 S.Ct. 1087). To satisfy this burden, the defendant must demonstrate that the “expert would materially assist him in the preparation of his defense” and that the expert’s absence “would result in a fundamentally unfair trial.” Id. We have said that the Husske standard is “congruent with the requirements of the federal Constitution.” Bramblett v. True, 59 Fed.Appx. 1, 9 (4th Cir.2003); see also Page v. Lee, 337 F.3d 411, 415-16 (4th Cir.2003) (finding that North Carolina’s particularized-need test, which mirrors Virginia’s, “is surely a reasonable interpret tation of Ake ”). Thus, the Supreme Court of Virginia did not unreasonably' apply clearly established federal law in requiring Morva to' show a particularized need for his requested expert. Turning to the Supreme Court of Virginia’s application of the Husske test to Mor-va’s case, we find no constitutional violation warranting habeas relief under § 2254(d). The court first addressed the three cases on which Morva relied in'support of his claim — Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1. (1986), and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) — and .found they did not dictate the result he urged. Morva I, 683 S.E.2d at 564-66. The court then discussed Virginia precedent on the relevance of prison-environment evidence to a future-dangerousness assessment and, finding irrelevant and therefore inadmissible an “essential” part of Dr. Cunningham’s proffered testimony (i.e., his testimony regarding prison life, prison security, and statistics on similarly situated defendants’ instances of violence in prison), concluded that “the circuit court did not err or abuse its discretion in denying [Morya’s] motion” because Morva did not satisfy the particularized-need test. Id. at 565-66. The Supreme Court of Virginia’s conclusion that Gardner,' Skipper," }, { "docid": "19593624", "title": "", "text": "risk assessment testimony as mitigating evidence in the penalty phase of his trial. The district court was correct in rejecting this claim. Before trial, Appellant moved for the appointment of Dr. Mark Cunningham \"as an expert on the assessment of the risk of violence by prison inmates and, in particular, the risk of future dangerousness posed by [Appellant] if incarcerated in a Virginia penitentiary for life.\" J.A. 66. The expert would have examined Appellant's history and determined the likelihood of violence in a prison setting. The trial court denied the motion, explaining \"the Virginia Supreme Court has consistently upheld the denial of use of public funds for such an expert, as it's not considered to be ... proper mitigation evidence.\" Id. at 206. In addition, the trial court decided that the testimony would not be \"particular[ized]\" to Appellant but rather, \"very general testimony\" about prisons and Appellant's likely behavior there. Id. at 207. The Supreme Court of Virginia affirmed. Here, Appellant claims that the denial of this expert violated his Fourteenth Amendment right to due process because in a death penalty case, he \"must be allowed to present rebuttal evidence.\" Appellant's Br. 24. After our remand in Porter II , this court decided Morva v. Zook , which held on § 2254(d) review that a Virginia state court's decision-that the defendant, Morva, had no due process right to appointment of a prison risk-assessment expert because he did not make the required particularized showing-was not contrary to or an unreasonable application of clearly established federal law. See 821 F.3d 517, 524-25 (4th Cir. 2016). Morva controls this argument. Quite simply, \"the U.S. Supreme Court has never addressed a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 524. As Morva explains, two key cases upon which Appellant relies, Skipper v. South Carolina , 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Simmons v. South Carolina , 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), are inapposite. In Skipper , the Supreme Court held that Skipper, a capital defendant, was entitled to present" }, { "docid": "7507548", "title": "", "text": "why the jury’s assessment regarding future dangerousness was flawed. I review each in turn. 1. Prison Conditions Expert. First, Bell asserts that the trial court denied him the right to put on evidence at sentencing from a prison expert on prison security and conditions, and thereby violated clearly established Supreme Comb precedent and disabled Bell from proving that his imprisonment for life in a “super-max” facility would create no future danger to society. Bell had secured an expert, James E. Aiken, a penologist and prison administrator, and sought to introduce his testimony for the purpose of rebutting the state’s evidence of Bell’s future dangerousness. The trial court excluded Aiken’s testimony as irrelevant to mitigation. Bell raised this issue in his direct appeal to the Supreme Court of Virginia, which found that the evidence Bell sought to introduce was of the same kind deemed not relevant to the future dangerousness inquiry in Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872 (2001), and Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642 (1999), because it was not specific to Bell’s character or history, or the circumstances of the offense. Bell I, 563 S.E.2d at 714. In Cherrix, the defendant sought to present evidence on prison life and its effect on his future dangerousness through testimony by various experts. Cherrix, 513 S.E.2d at 653. The trial court determined that the evidence proffered by the defendant was immaterial to mitigation. Id. The defendant argued to the Supreme Court of Virginia that exclusion of the proffered expert testimony was a violation of the Virginia law allowing presentation of mitigating evidence, and a violation of the constitutional right to mitigation evidence. The Supreme Court of Virginia disagreed, finding that the defendant’s right to present mitigating evidence does not limit the court’s authority to exclude as irrelevant evidence not bearing on the defendant’s character, prior record, or circumstances of the offense. Id.; see also Lockett v. Ohio, 438 U.S. 586, 605 n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The court further found that Cherrix sought to introduce evidence involving “the general nature of prison" }, { "docid": "17134730", "title": "", "text": "official. He was in a good position to form a judgment of the reliability of this information, which went directly to the issue of the ability of the federal prison system to defang the murderers in its custody. The defendant next objects under the Brady rule to the government’s failure to turn over “evidence” that inmates in the prison in which the Aryan Brotherhood hits occurred believed that the deaths of the inmates in question had other causes. This evidence, limited as it was to rumors that sweep prisons when any untoward event occurs, was so valueless that its exclusion from the trial could not be considered material. United States v. Villarreal, 963 F.2d 725, 730 (5th Cir.1992); Hopkinson v. Shillinger, 866 F.2d 1185, 1213, reheard en banc on other grounds, 888 F.2d 1286 (10th Cir.1989). We add as a detail that while the defendant was of course entitled to counter the government’s evidence that he would be a continued menace to society while in prison, that being evidence offered to establish an aggravating factor, 18 U.S.C. § 3593(c); cf. Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), he should not have been permitted to present to the jury, as he was, evidence of the existence of maxi mum-security federal prisons decked out with control units, in order to establish a mitigating factor. A mitigating factor is a factor arguing against sentencing this defendant to death; it is not an argument against the death penalty in general. See Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). The argument that life in prison without parole, especially if it is spent in the prison’s control unit and thus in an approximation to solitary confinement, sufficiently achieves the objectives aimed at by the death penalty to make the latter otiose is an argument addressed to legislatures, not to a" }, { "docid": "178134", "title": "", "text": "addressed to legislatures, not to a jury.” Id. at 675. In addition, the government cites Johnson for the argument that Defendant’s argument is inherently illogical, “as it amounts to saying that because this defendant is so dangerous, he does not deserve to be sentenced to death, since his dangerousness will assure his secure confinement. And its illogic shows that it is really an argument against the death penalty, period, since if this defendant should be spared because he is unusually dangerous, surely less dangerous murderers should not be executed either, even though, because they are less dangerous, they are less likely to be confined securely.” Id. While Johnson disapproved of this evidence as a mitigating factor, it approved of it in a proper case as rebuttal evidence to counter future dangerousness, which the government has alleged as a non-statutory aggravating factor in this case, although not of the nature involved in Johnson. Id. at 674-75. Defendant quotes from the Supreme Court’s decision in Skipper v. South Carolina, which held “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.” 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). But the evidence in Skipper concerned the defendant’s good behavior in prison, not security information about the prison. The Supreme Court has not addressed the right of a capital defendant to present evidence of prison security considerations. Schmitt v. Kelly, 189 Fed.Appx. 257, 265 (4th Cir.2006) (concluding state court’s refusal to allow such evidence was not an unreasonable application of federal law). However, a federal district court has joined the Seventh Circuit in holding such testimony is admissible in rebuttal: Because it will be obvious to the jury that the Government’s proof of this factor is intended to show that Wilson, rather than criminals in general, is a future danger, it will be equally obvious to the jury that [the expert’s] testimony, though based on statistical evidence, is intended to shed light on Wilson’s future dangerousness, not on that of anyone else. And because the Government will argue for the death penalty" }, { "docid": "88689", "title": "", "text": "929 (1976)). Because, in the capital context, a sentencing authority may consider a defendant’s past conduct as indicative of his probable future behavior, “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” and, under Eddings, may not be excluded from the sentencer’s consideration. Id. Hence, the core of the analysis in Skipper reflects the Court’s understanding that the right of a defendant to present evidence of good behavior in prison is particularly relevant when a prediction of future dangerousriess figures centrally in a prosecutor’s plea for imposition of the death penalty. In Skipper, the right to produce such evidence was triggered specifically “by the prosecutor’s closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison.” Id. at 5 n. 1, 106 S.Ct. 1669. Thus, “it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence [of good behavior in prison]; it is also the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ ” Id. (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)). Despite these holdings of the Supreme Court, the trial court in this case refused to allow Davis to present witnesses who would have testified as to his adaptation to death row, even over the state prosecutor’s suggestion that such evidence should be considered admissible. The state intermediate appellate court concluded, however, that the trial court “committed no Lockett error,” because “the appellant was permitted to introduce ample evidence in mitigation at the original sentencing hearing, including evidence of his good behavior in prison.” Davis III, 1990 WL 165137, at *2 (emphasis added). The Ohio Supreme Court affirmed, interpreting Skipper to forbid the exclusion only of a defendant’s good prison record between his arrest and trial, and holding that Skipper has no applicability to post-trial" }, { "docid": "7507553", "title": "", "text": "such testimony would be “mitigating” in serving as a basis for a sentence less than death, and reasoned that excluding such evidence violated the defendant’s right to place mitigating evidence before the sentencer. Id. at 5, 106 S.Ct. 1669. Further, the Court in Skipper limited its ruling, explicitly stating that it does “not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating.” Id. at 7 n. 2, 106 S.Ct. 1669. Bell asserts that the Supreme Court of Virginia’s application of Cherrix and Bums to his case violates the rule set out in Skipper. I disagree, and find that Virginia’s rules regarding general prison life evidence fit within the framework established by the cases setting out a defendant’s right to present mitigation evidence. Eddings and Lockett permit introduction of mitigation evidence particular to the defendant and his future adaptability. The Court granted relief in Skipper because the evidence excluded by the trial court was particular to the defendant and his adjustment to incarceration and was therefore within his constitutional rights to present. The evidence proffered by Bell, conversely, is general evidence related to prison conditions and deals with whether he could engage in violent acts while incarcerated. Thus, it falls outside the categories of character, history, or circumstances of the offense. Further, Bell mischarac-terizes the Virginia rule, asserting that it “abandoned” the inquiry into actual future dangerousness. On the contrary, the Virginia rule encourages the introduction of such evidence, so long as it deals particularly with the defendant, as required by Eddings and Lockett. Accordingly, I find that the Supreme Court of Virginia’s decision is not contrary to Skipper v. South Carolina and that relief would be improper on this claim. Next, Bell asserts that the Supreme Court of Virginia’s application of the rule against prison life evidence in his case violated his right to necessary expei’t services. Bell asserts that he had a right to rebut the state’s evidence of his future dangerousness, and after making a threshold showing was entitled to the assistance of an expert. Bell" }, { "docid": "7507550", "title": "", "text": "life,” rather than evidence concerning history and experience particular to the defendant. Cherrix, 513 S.E.2d at 653. Because the evidence was not specific to the defendant, but rather reached prison conditions generally, the court found that the trial court had properly excluded it. Id. In Burns, the defendant, recognizing that general prison life evidence had been deemed in Cherrix immaterial to mitigation, proffered the same evidence, but for the purpose of rebutting the state’s future dangerousness claim. The defendant argued that prison life evidence is material, as prison is the only society to which a capital defendant can pose a “continuing serious threat,” and therefore he should be permitted to demonstrate that the threat of criminal acts in the future is severely limited in a maximum security prison. Burns, 541 S.E.2d at 893. The court disagreed, reiterating its holding in Cherrix that the right to present mitigation evidence does not limit the court’s authority to exclude evidence which is immaterial or irrelevant, and holding that the relevant inquiry is not whether the defendant “could commit criminal acts of violence in the future, but whether he would.” Id. It determined that evidence regarding the general nature of prison life was not relevant to the particular facts of the defendant’s history and background and the circumstances of his offense, even when offered in rebuttal to evidence of future dangerousness. Id. Because this issue was adjudicated on the merits in state court, pursuant to § 2254(d) I may grant relief on Bell’s claims only if he shows either that the state court adjudication resulted in a decision that was contrary to or involved an unreasonable application of federal law, as determined by the United States Supreme Court, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. I find that Bell meets neither standard, that the Supreme Court of Virginia’s adjudication was reasonable, and that I must deny relief. First, Bell asserts that Virginia’s case law on prison conditions evidence is contrary to clearly established federal law, namely Skipper" }, { "docid": "7507549", "title": "", "text": "not specific to Bell’s character or history, or the circumstances of the offense. Bell I, 563 S.E.2d at 714. In Cherrix, the defendant sought to present evidence on prison life and its effect on his future dangerousness through testimony by various experts. Cherrix, 513 S.E.2d at 653. The trial court determined that the evidence proffered by the defendant was immaterial to mitigation. Id. The defendant argued to the Supreme Court of Virginia that exclusion of the proffered expert testimony was a violation of the Virginia law allowing presentation of mitigating evidence, and a violation of the constitutional right to mitigation evidence. The Supreme Court of Virginia disagreed, finding that the defendant’s right to present mitigating evidence does not limit the court’s authority to exclude as irrelevant evidence not bearing on the defendant’s character, prior record, or circumstances of the offense. Id.; see also Lockett v. Ohio, 438 U.S. 586, 605 n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The court further found that Cherrix sought to introduce evidence involving “the general nature of prison life,” rather than evidence concerning history and experience particular to the defendant. Cherrix, 513 S.E.2d at 653. Because the evidence was not specific to the defendant, but rather reached prison conditions generally, the court found that the trial court had properly excluded it. Id. In Burns, the defendant, recognizing that general prison life evidence had been deemed in Cherrix immaterial to mitigation, proffered the same evidence, but for the purpose of rebutting the state’s future dangerousness claim. The defendant argued that prison life evidence is material, as prison is the only society to which a capital defendant can pose a “continuing serious threat,” and therefore he should be permitted to demonstrate that the threat of criminal acts in the future is severely limited in a maximum security prison. Burns, 541 S.E.2d at 893. The court disagreed, reiterating its holding in Cherrix that the right to present mitigation evidence does not limit the court’s authority to exclude evidence which is immaterial or irrelevant, and holding that the relevant inquiry is not whether the defendant “could commit" }, { "docid": "7507552", "title": "", "text": "v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Bell is correct in asserting that Supreme Court precedent establishes for capital defendants a right to present mitigating evidence relating to their character, record, or offense to the sentencing body. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). While Bell characterizes this right as “broad,” the Supreme Court has limited permissible mitigation evidence to that which is relevant and related to “a defendant’s character or record and any ... circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); see Eddings, 455 U.S. at 110, 102 S.Ct. 869. In Skipper v. South Carolina, the Supreme Court found a violation of the right to present mitigation evidence where the state court excluded testimony by two jailers and one “regular visitor” that the defendant had made a “good adjustment” to life in jail during his seven months of incarceration. 476 U.S. at 6, 106 S.Ct. 1669. The Court found that such testimony would be “mitigating” in serving as a basis for a sentence less than death, and reasoned that excluding such evidence violated the defendant’s right to place mitigating evidence before the sentencer. Id. at 5, 106 S.Ct. 1669. Further, the Court in Skipper limited its ruling, explicitly stating that it does “not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating.” Id. at 7 n. 2, 106 S.Ct. 1669. Bell asserts that the Supreme Court of Virginia’s application of Cherrix and Bums to his case violates the rule set out in Skipper. I disagree, and find that Virginia’s rules regarding general prison life evidence fit within the framework established by the cases setting out a defendant’s right to present mitigation evidence. Eddings and Lockett permit introduction of mitigation evidence particular to the defendant and his future adaptability. The Court granted relief in Skipper because the evidence excluded by the trial court was particular to the defendant and his adjustment to incarceration and" }, { "docid": "12676171", "title": "", "text": "majority has overlooked the genesis of Simmons. Simmons was merely an extension of the rule in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), that “elemental due process require[s] that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ ” Skipper, 476 U.S. at 5 n. 1, 106 S.Ct. 1669 (plurality opinion) (quoting Gardner, 430 U.S. at 362, 97 S.Ct. 1197), quoted in part in Simmons, 512 U.S. at 164, 114 S.Ct. 2187 (plurality opinion), and quoted in id. at 175, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment). As both the plurality opinion and the O’Connor concurrence recognized, the fact that the defendant will never be released from prison “will often be the only way that a violent criminal can successfully rebut the State’s case [of future dangerousness].” Simmons, 512 U.S. at 177, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment); id. at 163-64, 114 S.Ct. 2187 (plurality opinion) (“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.... Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.”). This principle has full force in the case at bar. At capital sentencing, the prosecution presented evidence of Ramdass’ future dangerousness. Some of this evidence included the fact that Ramdass had committed the Pizza Hut robbery and the Domino’s Pizza robbery. More importantly, the Commonwealth repeatedly referred to the fact that Ramdass had committed many of his crimes while on parole. The Commonwealth mentioned the phrase “mandatory parole” several times, suggesting to the jury that the Commonwealth would have no choice but to parole Ram-dass at some future date. In the face of this evidence of future dangerousness, Ramdass was rendered powerless to explain to the jury that, but for what was at that point a meaningless ministerial act, he was ineligible for parole under" }, { "docid": "178135", "title": "", "text": "pose a danger if spared (but incarcerated) must be considered potentially mitigating.” 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). But the evidence in Skipper concerned the defendant’s good behavior in prison, not security information about the prison. The Supreme Court has not addressed the right of a capital defendant to present evidence of prison security considerations. Schmitt v. Kelly, 189 Fed.Appx. 257, 265 (4th Cir.2006) (concluding state court’s refusal to allow such evidence was not an unreasonable application of federal law). However, a federal district court has joined the Seventh Circuit in holding such testimony is admissible in rebuttal: Because it will be obvious to the jury that the Government’s proof of this factor is intended to show that Wilson, rather than criminals in general, is a future danger, it will be equally obvious to the jury that [the expert’s] testimony, though based on statistical evidence, is intended to shed light on Wilson’s future dangerousness, not on that of anyone else. And because the Government will argue for the death penalty based in part on Wilson’s alleged future dangerousness, this court must give Wilson “fair opportunity to present argument as to the adequacy of the information to establish the existence” of that aggravating factor. 18 U.S.C. § 3593(c). United States v. Wilson, 493 F.Supp.2d 491, 508 (E.D.N.Y.2007). The Wilson court, however, prohibited testimony about any specific institutions as unduly speculative. Id. The evidence would be especially important in rebuttal because the FDPA and Constitution both require Defendant have a fair opportunity to rebut the government’s evidence. 18 U.S.C. § 3593(c); Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Davis v. Coyle, 475 F.3d 761, 771 (6th Cir.2007) (holding state court improperly refused to admit evidence of defendant’s adaptation to prison because it was clearly relevant to future dangerousness); see also Johnson, supra, 223 F.3d at 674-75. In this case, however, the proffered testimony clearly was not rebuttal evidence. The FDPA allows Defendant to “rebut any information received at the hearing.” 18 U.S.C. § 3593(c). Although “the hearing” appears to refer" }, { "docid": "10842293", "title": "", "text": "case by the prosecutor’s closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death “on the basis of information which he had no opportunity to deny or explain.” Id. at 5 n. 1, 106 S.Ct. 1669 (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)). The concurrence in Skipper agreed with the result reached by the majority but would have reversed on the ground that the defendant was not allowed to relóut evidence and argument used against him, citing Gardner. See id. at 9, 106 S.Ct. 1669 (Powell, J. concurring). As did the majority, the concurrence pointed out that the constitutional error was aggravated by the prosecutor’s closing argument, which emphasized the very evidence the excluded testimony would have rebutted. See id. at 11, 106 S.Ct. 1669. Significant for our pin-poses here, the Court held that the prosecutor’s argument both underscored the relevance of the evidence and aggravated the error arising from its exclusion, and found reversible error notwithstanding the fact that the excluded evidence was inadmissible under state law. Also relevant to our inquiry is the Supreme Court’s treatment in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam), of facts analogous to those before us. There the trial court had denied the introduction of evidence that was inadmissible hearsay under state law. Citing Lockett, the Court held the exclusion constitutional error, stating that “[r]egardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment” because it “was highly relevant" } ]

[ { "docid": "21188914", "title": "", "text": "copy and commercially exploit that article, for such a law would enable the originator to accomplish with the left hand of state authority what he was unable to accomplish with the right hand bearing the authority of the primary federal interest. Sears, Roebuck & Co. v. Stiffel Co., supra, 376 U.S. at 232-233, 84 S.Ct. 784. No state intrusion of the federal field is permissible unless the law of the state meshes in purpose and effect with the announced objectives of federal copyright law. Sears, Roebuck & Co. v. Stiffel Co., supra, 376 U.S. at 231, 84 S.Ct. 784. A limited ambit of operation is accorded state law but it may be exercised only insofar as consistent with the paramount federal interest. Compco Corp. v. Day-Brite Lighting, supra, 376 U.S. at 238, 84 S.Ct. 779. Accordingly, the Supreme Court expressly mentioned the state common-law action of unfair competition with the element of “palming off,” an element Mr. Justice Holmes, concurring in International News Service v. Associated Press, referred to as “ * * * an infusion of fraud * * * necessary to turn a flavor into a poison * * * ” so as to permit “ * * * a remedy from the law * * * without legislation * * * ” (248 U.S. 215 at 247-248, 39 S.Ct. 68, at 75, 63 L.Ed. 211) as surviving its decision. And state courts have subsequently decided that a state action based upon common-law copyright also survives (See Edgar H. Woods Associates Inc. v. Skene, Mass., 197 N.E.2d 886 [May 19, 1964] ; Columbia Broadcasting System, Inc. v. Documentaries Unlimited, Inc., 42 Misc.2d 723, 248 N.Y.S.2d 809 [April 14, 1964], a position^, which finds explicit support in Sears, 376/ U.S. at n. 7, p. 231, 84 S.Ct. 784. J III Applying Sears and Compco’s composite thesis to the case at hand, we view it as dispositive of appellees’ two grounds for relief. Save for the limited protection accorded the creator of literary and intellectual works under the Copyright Act or its exceptions — and here appellees concede they are" } ]

[ { "docid": "5333702", "title": "", "text": "plaintiff’s fashion designs, the court emphasized the fact that the defendants had been permitted to see the designs on the express condition that they would not make or divulge any reproduction of any of the designs. Here, in contrast, there was neither use of an actual recording of plaintiff’s voice in defendants’ commercials nor any express condition to viewers of the Hazel television series analogous to that set forth in Dior. Moreover, the argument that New 'York law protects a performer from imitators is undercut by the Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). Sears and Compco, both involving invalid design patents, held that the states are preempted from protecting, under state unfair competition law, designs that Congress has not chosen to protect by means of the federal patent laws. The Court’s reasoning, however, was not based upon peculiarities of patent law. Rather, the Court spoke in broad and general terms about the purpose of patent and copyright laws and about the need for national uniformity: “[B]ecause of the federal patent laws a State may not, when the article is unpatented and uncopyrighted, prohibit the copying of the article itself or award damages for such copying.” 376 U.S. at 232-233, 84 S.Ct. at 789. (Emphasis added.) Again emphasizing the “strong federal policy favoring free competition in ideas which do not merit patent protection,” the Court reaffirmed Sears and Compco in Lear, Inc. v. Adkins, 395 U.S. 653, 656, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969). The latest Supreme Court decision, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973) involved “record” or “tape piracy,” meaning “the unauthorized duplication of recordings of performances by major musical artists.” 93 S.Ct. at 2306. In Goldstein, the Court upheld a California statute which made it a criminal offense to “pirate” recordings produced by others. The Court, however, reaffirmed its decisions in Sears and Compco, which had dealt with copying" }, { "docid": "18668805", "title": "", "text": "light of its view that HBO has failed to show that its transmissions do not constitute “broadcasting” for the purposes of the statute. . Thus, KMLA Broadcasting Corporation v. Twentieth Century Cigarette Vendors Corporation, supra, the case upon which HBO principally relies, is not particularly apposite. KMLA involved an FM radio station’s transmission of background music on a separate, subcarrier frequency. The station’s main channel broadcasts were intended for the public at large. The court found, however, that the background music transmissions on the subcarrier frequency, which were sold only to industrial and mercantile subscribers, did not constitute “broadcasting”. 264 F.Supp. at 40-41. . HBO argues that the FCC has classified MDS transmissions as non-broadcast, point-to-point communications. The FCC’s interpretation of the Communications Act is undoubtedly entitled to great deference, KMLA Broadcasting Corp. v. Twentieth Century Cigarette Vendors Corp., 264 F.Supp. at 41-42, but the FCC’s limited pronouncements on the issue do not necessarily support HBO’s position. In formulating a regulatory structure for MDS transmission, the FCC has merely recognized that its primary use has been not to provide entertainment or information to the public but rather to provide commercial and industrial subscribers with reception of specialized communications in accordance with their specific requirements. See, e. g., In re Applications of Midwest Corp., 53 F.C.C.2d 294, 300 (1975), 38 F.C.C.2d 897, 899 (1973). The court does not read these rulings to preclude a finding that an MDS system utilized to provide pay television programming of general appeal and marketed to large numbers of non-commercial viewers engages in broadcasting. . Prior to the enactment of the new copyright statute the law of preemption in this area was in a state of disarray. In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Supreme Court held that a state cannot confer protection under its unfair competition laws against the sale of articles copied from others manufactured under invalid patents, simply because of possible confusion as to" }, { "docid": "20573881", "title": "", "text": "to the practice of making such copies. House Report No. 92-487 stated that the volume of business conducted by “pirates” exceeds $100,000,000 per year. . 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). . Ibid., 239-240, 39 S.Ct., 72. . Ibid., 241-242, 39 S.Ct., 73. But see the dissent of Holmes, J., 248, bolding that AP was merely entitled to have INS give credit to the source of its information. See also the extensive dissent of Brandéis J., 248-267. . E. g., Columbia Broadcasting System, Inc. v. De Costa, 377 F.2d 315, 318 (1st Cir. 1967). . 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). . 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). . Sears, 376 U.S. 231-232, 84 S.Ct., 788. . Ibid., 232, 84 S.Ct., 789. . E. g., Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 120, 59 S.Ct. 109, 83 L.Ed. 73 (1938). . Compco, 376 U.S. 237, 84 S.Ct. 782. . House Report No. 92-487. . 17 U.S.C. § 101(e) set forth the federal rights existing prior to the enactment of 92-140. These were that an owner of a musical copyright who had permitted the musical reproduction of the work on discs or tapes could in a civil action obtain an injunction against the unauthorized use of the recording and recover in lieu of damages and profits, a royalty of 2$ per copy manufactured, ns provided in 17 U.S.C. § 1(e). However, if a person made mechanical reproductions without the consent of the copyright owner, and paid a royalty of 2$ per copy to the owner, no civil action would lie against him. . 316 F.Supp. 340 (C.D.Cal.1970), appeal dismissed, 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801 (1971). . Ibid., 350. . Itid., 351. That Court also held that it made no difference whether the California statute was deemed a larceny statute or an unfair competition statute. . In addition, if the plaintiff in the case had purchased, rather than stolen, the records which they reproduced, it is questionable whether a “larceny” was committed. See, Smith" }, { "docid": "9411253", "title": "", "text": "L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Supreme Court held only that business competitors could commercially produce an item “substantially identical” to an item produced by another company, but unprotected by patent or copyright, without fear of liability under state unfair competition laws. In both Sears and Compco the products at issue were unprotected by patent. The “Paladin” character in Columbia Broadcasting System, Inc. v. DeCosta, 377 F.2d 315 (1st Cir. 1967), was likewise unprotected by a copyright. As we said in Cable Vision, Inc. v. KUTV, Inc., 335 F.2d 348, 351 (9th Cir. 1964), “Save for the limited protection accorded the creator of literary and intellectual works under the Copyright Act and its exceptions . . . , anyone may freely and with 'impunity avail himself of such works to any extent he may desire and for any purpose whatever subject to the qualification that he does not steal good will, or, perhaps more accurately stated, deceive others in thinking the creations represent his own work.” (emphasis supplied.) Sears and Compco do not sanction Rosner’s outright appropriation, in violation of copyright, of the actual performances contained on appellants’ records. Rosner may, of course, record appellants’ songs, when she hires musicians, artists, and technicians. Instead, she steals the genius and talent of others. She deceives others into thinking that her tapes represent her own work. She has no “right to copy.” See Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553 (S.Ct. 1964). She may not continue her piracy under the flag of compulsory licensing. Reversed and remanded. . 214 U.S. 533 (1909), as amended by 307 U.S. 652 (1939). See 17 U.S.C. pp. 276-281. . Rules 2 and 3 refer to “ . . . infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright ...” Rule 2. Rule 9 and Rule 3, in a second sentence, omit the “etc.” Rules 6 and 11 refer to “infringing articles” and “the articles seized.”" }, { "docid": "18668807", "title": "", "text": "their source. The Court reasoned that a state’s extension of the life of the patent monopoly beyond its expiration date would subvert the Congressional balance between rewarding useful invention and permitting the public to enjoy the fruits of innovation. The Sears-Compco doctrine was generally viewed as applicable to copyright law, see, e. g., Cable Vision, Inc. v. KUTV, Inc., 335 F.2d 348, 350 n.1 (9th Cir. 1964), cert. denied, 379 U.S. 989, 35 S.Ct. 700, 13 L.Ed.2d 609 (1965), but a number of lower courts, generally in cases involving “tape piracy”, sought to limit its preemptive effect to state laws involving “copying”, rather than outright “appropriation” of another’s product. See, e. g., Compumarketing Services Corp. v. Business Envelope Manufacturers, Inc., 342 F.Supp. 776, 777-78 (N.D.Ill.1972); Tape Industries Association of America v. Younger, 316 F.Supp. 340, 350 (C.D. Cal. 1970) (three-judge court), appeal dismissed, 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801 (1971); Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553, 556-57 (1964). This distinction was criticized by courts and commentators alike as insufficiently protective of federal interests. See, e. g., International Tape Manufacturers Association v. Gerstein, 344 F.Supp. 38, 50-54 (S.D. Fla.1972), vacated for lack of ripeness, 494 F.2d 25 (5th Cir. 1974); 1 M. Nimmer, Copyright § 1.01[B] at 1-17 to -19 (1978 ed.); Note, The “Copying-Misappropriation Distinction: A False Step in the Development of the SearsCompco Pre-Emption Doctrine, 71 Colum.L. Rev. 1444 (1971). Additional confusion was engendered with the decisions in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973) (sustaining state statute affording copyright protection for subject not eligible under federal copyright law) and Kewanee Oil Corp. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974) (sustaining state common law of trade secrets), which some viewed as undermining the Sears-Comp-co doctrine. Ives Laboratories, Inc. v. Darby Drug Co., 601 F.2d 631, 640, 641 (2d Cir. June 11, 1979). . As Professor Nimmer notes, § 301’s legitimate history is somewhat confusing on this point. See 1 M. Nimmer, supra, § 1.01[B], at 1-13 to" }, { "docid": "18392133", "title": "", "text": "distribute copies of copyrighted work. Plaintiffs seek not to enforce their rights to copy and distribute their plans and drawings. Nor do Plaintiffs seek to recover damages analogous to the actual damages provided by § 504(b). Rather, Plaintiffs seek to recover under quantum meruit theory the value of the services rendered by Defendants’ use of the plans and specifications prepared by Plaintiffs. Thus, both the rights Plaintiffs seek to enforce and the measure of damages under the unjust enrichment theory differ from those under copyright law. Section 301 has not preempted Plaintiffs’ cause of action for unjust enrichment. While Section 301 has partially simplified the preemption analysis under the copyright laws, the section has not entirely superseded the analysis of the prior case law. The preemption analysis established by Section 301 preempts state-created actions that enforce rights that are the equivalent of the exclusive rights of copyright contained in Section 106. The statute, therefore, expressly preempts those state-created actions that are redundant of copyright protections. In a line of cases beginning in 1964 involving patent and copyright statutes, the Supreme Court has recognized an independent basis for preemption, holding that state laws are preempted when their scheme of protection “clashes with the objectives of the federal patent [or copyright] laws.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S.Ct. 784, 789, 11 L.Ed.2d 661 (1964). In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Court first considered the preemptive effect of the patent laws on state laws offering similar protections. Both Sears and Compco involved the copying of lighting fixtures for which design patents had been held invalid. In both cases, the lower courts had applied state laws of unfair competition to accord patent-like protection to articles that did not qualify for protection under the federal patent laws. The Court held in both cases that state law could not be used to extend patent protection where such protection would" }, { "docid": "9438352", "title": "", "text": "Larsen does not hold a patent on the design. To support this proposition, Terk cites to two pillars of intellectual property law, Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). However; Sears and Compco hold only that an unpatented item is part of the public domain and may be copied at will; they do not stand for the proposition that a party may copy an article in the public domain and then pass off its counterfeit as being the genuine article. See Sears, 376 U.S. at 232-33, 84 S.Ct. 784; Compco, 376 U.S. at 238, 84 S.Ct. 779. Moreover, as explained below, the federal courts of appeal have widely held that the Sears-Compco doctrine is not a defense to a Lanham Act violation. Sears and Compco were nearly identical cases decided by the Supreme Court on the same day. In both cases, the defendants manufactured and sold essentially indistinguishable copies of the plaintiffs’ lighting fixtures, and the plaintiffs sued for federal patent infringement and claims of state unfair competition. See Sears, 376 U.S. at 226, 84 S.Ct. 784; Compco, 376 U.S. at 235, 84 S.Ct. 779. The district courts held the respective patents to be invalid, but found the defendants liable for violations of state unfair competition laws, and the Seventh Circuit affirmed. See Sears, 376 U.S. at 226-27, 84 S.Ct. 784; Compco, 376 U.S. at 235-36, 84 S.Ct. 779. The Supreme Court reversed, holding that state unfair competition laws which grant what is essentially the equivalent of federal patent protection are preempted by federal patent laws. See Sears, 376 U.S. at 231-32, 84 S.Ct. 784; Compco, 376 U.S. at 237, 84 S.Ct. 779. The Supreme Court stated: Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter" }, { "docid": "11783318", "title": "", "text": "court allowed both forms, of protection to stand); see also Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 172 (2d Cir.1991) (Winter, C.J., concurring in part and dissenting in part) (there are “fine but important distinctions between the legal protections offered by design patents, copyrights and trademarks”); see generally Dratler, Industrial Designs, 1988 U.Ill.L.Rev. 887, 922-24, 936-37. Kohler disagrees with our view that patent and trademark law are distinct areas of law. Instead, Kohler maintains that in light of the Supreme Court’s holdings in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), Moen’s faucet and faucet handle are not protected under the Act because unpatented goods may be freely copied. In all three cases that Kohler relies upon, the Supreme Court examined state unfair competition laws to evaluate whether federal patent law preempted their application. The Court in each case held that a state’s unfair competition laws could'not extend patent-like protection to otherwise unprotected designs because such protection conflicted with the fed'eral policy expressed in the patent clause and patent laws of generally free trade in unpat-ented desigh and utilitarian concepts. See Bonito Boats, 489 U.S. at 152-54, 109 S.Ct. at 978-79 (discussing Sears and Campeo decisions). We disagree with Kohler’s sweeping conclusion that the Supreme Court’s holdings in Sears, Compeo, and Bonito Boats preclude trademark protection for product configurations. In the Sears/Compco decisions, the Supreme Court reviewed two decisions from this court which held that Illinois unfair competition law prohibited unauthorized copying of unpatentable lighting fixture designs. The Supreme Court held in both eases that federal copyright and patent law preempted the state unfair competition law which prohibited the copying of a nonpatented product. Sears, 376 U.S. at 231-32, 84 S.Ct. at 789; Compco, 376 U.S. at 237-38, 84 S.Ct. at 782. Kohler argues that because state unfair competition and federal trademark law serve" }, { "docid": "11783317", "title": "", "text": "at 337. In sum, courts have consistently held that a product’s different qualities can be protected simultaneously, or successively, by more than one of the statutory means for protection of intellectual property. See, e.g., Bonito Boats, 489 U.S. at 154, 109 S.Ct. at 979 (federal patent laws, do not preclude states from enacting regulations to protect business’s use of trademarks, labels, or trade dress to prevent consumer confusion); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476-78, 94 S.Ct. 1879, 1883-84, 40 L.Ed.2d 315 (1974) (patent protection extends to elements not adequately protected by copyright); Application of Mogen David Wine Corp., 328 F.2d 925, 930 (C.C.P.A.1964) (Trademark rights that happen to continue beyond the expiration date of a patent on the same product do not extend the patent grant, because the two forms of protection “exist independently ... under different law and for different reasons.”); In re Yardley, 493 F.2d 1389, 1394 (C.C.P.A.1974) (because “Congress has not provided that an author-inventor must elect between securing a copy right or securing a design patent,” the court allowed both forms, of protection to stand); see also Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 172 (2d Cir.1991) (Winter, C.J., concurring in part and dissenting in part) (there are “fine but important distinctions between the legal protections offered by design patents, copyrights and trademarks”); see generally Dratler, Industrial Designs, 1988 U.Ill.L.Rev. 887, 922-24, 936-37. Kohler disagrees with our view that patent and trademark law are distinct areas of law. Instead, Kohler maintains that in light of the Supreme Court’s holdings in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), Moen’s faucet and faucet handle are not protected under the Act because unpatented goods may be freely copied. In all three cases that Kohler relies upon, the Supreme Court examined state unfair competition laws to evaluate whether federal" }, { "docid": "23467303", "title": "", "text": "majority of the digits of confusion does not require a court to find a likelihood of confusion. See id. at 199. Therefore, the traditional likelihood-of-confusion analysis is applicable in a comparative-advertising situation, but the court should usually consider the nominative-use claim in conjunction with its likelihood-of-confusion analysis to avoid lowering the standard of confusion. Because Tour 18 used the Plaintiffs’ marks in more than a merely nominative sense, a different approach would not have altered the result. 5. Effect of Sears-Compco In addition to its attack on the district court’s traditional trade-dress analysis, Tour 18 contends that it has the unfettered right to copy the Plaintiffs’ golf-hole designs and lighthouse under the Intellectual Property Clause of the Constitution. See U.S. Const. art. I, § 8, cl. 8. Tour 18 points to Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), to demonstrate that unfair-competition law cannot protect product designs or configurations to which no current, valid patent applies. We disagree. First, Sears and Compco, both decided the same day, concerned the preemption of state trade-dress protection by federal patent law and barred the use of state unfair-competition laws to prohibit the copying of products that are not protected by federal patents. See Sears, 376 U.S. at 231-32, 84 S.Ct. 784 (copying of a lamp); Compco, 376 U.S. at 237-38, 84 S.Ct. 779 (copying of a reflector for a fluorescent light fixture). This bar to state prohibitions on copying includes nonfunctional designs and designs that have achieved secondary meaning. See Compco, 376 U.S. at 238, 84 S.Ct. 779. However, the Supreme Court noted that “other federal statutory protection,’-’ in addition to the patent laws, may bar copying of a product. See id. at 238, 84 S.Ct. 779. In Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989), the Supreme Court reaffirmed its Sears-Compco holdings that limit state protection of product designs and noted that the application of" }, { "docid": "23103285", "title": "", "text": "source). If likelihood of confusion is avoided, copying of trade dress can not be prevented under § 43(a). The right to copy unpatented and uncopyrighted designs of articles of manufacture was stated in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661, 140 USPQ 524 (1964), reh’g denied, 376 U.S. 973, 84 S.Ct. 1131, 12 L.Ed.2d 87 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, 140 USPQ 528 (1964), reh’g denied, 377 U.S. 913, 84 S.Ct. 1162, 12 L.Ed.2d 183 (1964). The evolution of state and federal laws of unfair competition had led some commentators to criticize the reach of Sears and Compco, as the Court remarked in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 154, 109 S.Ct. 971, 979, 103 L.Ed.2d 118, 136, 9 USPQ2d 1847, 1853 (1989) (“The preemptive sweep of our decisions in Sears and Compco has been the subject of heated scholarly and judicial debate”). However, the Court in Bonito Boats reaffirmed the principle of Sears and Compco, and reiterated that the public has the right to copy the design of goods that are unprotected by patent or copyright, absent consumer confusion or deception. The Court quoted Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 301 (2d Cir.1917) (L. Hand, J.), as follows: [T]he plaintiff has the right not to lose his customers through false representations that those are his wares which in fact are not, but he may not monopolize any design or pattern, however trifling. The defendant, on the other hand, may copy plaintiffs goods slavishly down to the minutest detail: but he may not represent himself as the plaintiff in their sale. Bonito Boats, 489 U.S. at 157, 109 S.Ct. at 981, 103 L.Ed.2d at 139, 9 USPQ2d at 1855. The Court thus reaffirmed that when not protected by patent or copyright, even distinctive product designs can not be absolutely shielded from copying. In Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 24 USPQ2d 1161 (2d Cir.1992), the Second" }, { "docid": "686945", "title": "", "text": "based upon Sears, Roebuck & Co. v. Stiffel Lamp Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) they are free to copy every detail of plaintiff’s product as they wish. In Sears and in Compco the United States Supreme Court held that a state’s unfair competition law may not, consistently with federal patent laws, impose liability or prohibit the copying of an article that is not protected either by a federal patent or a copyright. In both cases the Court was faced on the one hand with unpatented and unpatentable products (a pole lamp in Sears, a fluorescent light fixture in Compco) and at the same time with lower Court rulings that the state law of unfair competition had been violated. The Court would not permit this conflict between the state and federal laws, for to forbid copying would interfere with the federal policy “of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” Compco, supra, at 237, 84 S.Ct. at 782. In broad language which has generated a great deal of controversy, see generally Dannay, The Sears-Compco Doctrine Today: Trademarks and Unfair Competition, 67 Trademark Reporter 132 (1977), the Court seemingly dealt the death blow to state claims based on copying or misappropriation: As we have said in Sears, while the federal patent laws prevent a State from prohibiting the copying and selling of unpatented articles, they do not stand in the way of state law, statutory or decisional, which requires those who make and sell copies to take precautions to identify their products as their own. A State of course has power to impose liability upon those who, knowing that the public is relying upon an original manufacturer’s reputation for quality and integrity, deceive the public by palming off their copies as the original. That an article copied from an unpatented article could be made in some other way, that the design is “nonfunctional” and not essential to the use" }, { "docid": "18668806", "title": "", "text": "been not to provide entertainment or information to the public but rather to provide commercial and industrial subscribers with reception of specialized communications in accordance with their specific requirements. See, e. g., In re Applications of Midwest Corp., 53 F.C.C.2d 294, 300 (1975), 38 F.C.C.2d 897, 899 (1973). The court does not read these rulings to preclude a finding that an MDS system utilized to provide pay television programming of general appeal and marketed to large numbers of non-commercial viewers engages in broadcasting. . Prior to the enactment of the new copyright statute the law of preemption in this area was in a state of disarray. In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Supreme Court held that a state cannot confer protection under its unfair competition laws against the sale of articles copied from others manufactured under invalid patents, simply because of possible confusion as to their source. The Court reasoned that a state’s extension of the life of the patent monopoly beyond its expiration date would subvert the Congressional balance between rewarding useful invention and permitting the public to enjoy the fruits of innovation. The Sears-Compco doctrine was generally viewed as applicable to copyright law, see, e. g., Cable Vision, Inc. v. KUTV, Inc., 335 F.2d 348, 350 n.1 (9th Cir. 1964), cert. denied, 379 U.S. 989, 35 S.Ct. 700, 13 L.Ed.2d 609 (1965), but a number of lower courts, generally in cases involving “tape piracy”, sought to limit its preemptive effect to state laws involving “copying”, rather than outright “appropriation” of another’s product. See, e. g., Compumarketing Services Corp. v. Business Envelope Manufacturers, Inc., 342 F.Supp. 776, 777-78 (N.D.Ill.1972); Tape Industries Association of America v. Younger, 316 F.Supp. 340, 350 (C.D. Cal. 1970) (three-judge court), appeal dismissed, 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801 (1971); Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553, 556-57 (1964). This distinction was criticized by courts and" }, { "docid": "23494811", "title": "", "text": "theories. One takes off from the dissent of three Justices to the portion of the Lear opinion which left open the enforceability of a contract requiring payments for the disclosure of an invention during the period when a patent application is pending, 395 U.S. at 676-677, 89 S.Ct. 1902. The argument is that for a state to recognize an agreement requiring payment for trade secrets during its term or their return and a cessation of use on its expiration, would run afoul of the determination in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), that state laws prohibiting the copying of articles not protected by valid patents or copyrights but offered for public sale were inconsistent with the federal patent and copyright laws. In his partial dissent in Lear, Mr. Justice Black explained those decisions, which he had written for the Court, as resting on the basis “that no State has a right to authorize any kind of monopoly on what is claimed to be a new invention, except when a patent has been obtained from the Patent Office under the exacting standards of the patent laws,” 395 U.S. at 677, 89 S.Ct. at 1914. With great respect, this very statement seems to us to show the inapplicability of Sears and Compco to the problems at issue in the disputed portion of Lear and here discussed. The Illinois law of unfair competition invalidated in Sears and Compco did confer a monopoly against copying an article otherwise in the public domain, a monopoly good against non-contractors just as a patent or copyright would have been. As Mr. Justice Black there pointed out, the Illinois law afforded protection quite similar to that given by the patent and copyright statutes but free from their safeguards and limits of time. An agreement licensing a trade secret is an altogether different matter.- It binds no one except the licensee; all others are free, as the licensee previously was, to" }, { "docid": "15435513", "title": "", "text": "secondary meaning or “such practices as constitute palming off, actual deception or appropriation of another’s property.” 271 F.2d at 571. The court cited Upjohn Co. v. Schwartz, supra, as an instance of palming off. Id. This brings us to Sears and Compco, supra, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 and 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669. Their precise holding was that a state may not confer protection under its law of unfair competition against the retail sale of articles which were copied from others manufactured under invalid design patents (in Sears also under an invalid mechanical patent), simply because of confusion or likelihood of confusion. There is no indication that either Stiffel’s lamps or Day-Brite’s reflectors were trademarked, although the lamps bore Stiffel tags and the fixtures of which the reflectors were a part were identified by a catalog number. The Sears lamps were sold at retail without identifying tags (although the cartons containing them were marked) and there was some evidence of actual confusion, 376 U.S. at 226-27, 84 S.Ct. 784. On the other hand the Court found “considerable evidence of the care taken by Compco to prevent customer confusion, including clearly labeling both the fixtures and the containers in which they were shipped and not selling through manufacturers’ representatives who handled competing lines.” 376 U.S. at 237, 84 S.Ct. at 781. The holdings clearly apply to goods covered by an expired patent with the same force (or arguably even more, see Brown, Product Simulation, 64 Colum.L.Rev. 1216, 1218-19 (1964)), as to an invalid patent. It has been said that if the lower courts in Sears and Compco had rested their decisions on “general” principles of unfair competition law rather than on the law of Illinois, the Supreme Court would not have needed more than a citation of Kellogg to justify reversal. Brown, Product Simulation, supra, at 1216. It was this probably unwarranted reliance, see 376 U.S. at 227 n. 2, 84 S.Ct. 784, that led the Court to take a constitutional ground — preemption by federal patent law — and then to" }, { "docid": "18392134", "title": "", "text": "and copyright statutes, the Supreme Court has recognized an independent basis for preemption, holding that state laws are preempted when their scheme of protection “clashes with the objectives of the federal patent [or copyright] laws.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S.Ct. 784, 789, 11 L.Ed.2d 661 (1964). In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Court first considered the preemptive effect of the patent laws on state laws offering similar protections. Both Sears and Compco involved the copying of lighting fixtures for which design patents had been held invalid. In both cases, the lower courts had applied state laws of unfair competition to accord patent-like protection to articles that did not qualify for protection under the federal patent laws. The Court held in both cases that state law could not be used to extend patent protection where such protection would interfere with the system of laws passed by Congress to balance the promotion of invention and authorship while preserving free competition. The Court stated: Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then for only a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.” Sears, 84 S.Ct. at 788-89. The Court concluded that because the lighting fixtures at issue were not entitled to patent protection, their design was in the public domain and could be used by anyone choosing to do so. “ ‘Sharing in the goodwill of an article unprotected" }, { "docid": "8853489", "title": "", "text": "Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). As the Court subsequently explained, Sears and Compco involved “the question [of] whether a State could, under principles of a state unfair competition law, preclude the copying of mechanical configurations which did not possess the qualities required for the granting of a federal design or mechanical patent.” Goldstein v. California, 412 U.S. 546, 569, 93 S.Ct. 2303, 2316, 37 L.Ed.2d 163 (1973) (emphasis added). Plasticolor would have us extend the holdings of Sears and Compco beyond mechanical configurations, to require the preemption of state protection of any functional aspect of a product, including a word such as Ford. Such an extension, however, has been foreclosed by Goldstein and by Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974). In both of these cases, the Court drew a distinction between items that are within the sphere of the patent laws, but are unprotected, and items that fall outside of that sphere. Goldstein rebuffed a claim that the patent laws preempted state protection against record piracy, observing: In regard to mechanical configurations, Congress had balanced the need to encourage innovation and originality of invention against the need to insure competition in the sale of identical or substantially identical products. The standards established for granting federal patent protection to machines thus indicated not only which articles in this particular category Congress wished to protect, but which configurations it wished . to remain free. The application of state law in these cases to prevent the copying of articles which did not meet the requirements for federal protection disturbed the careful balance which Congress had drawn and thereby necessarily gave way under the Supremacy Clause of the Constitution. No comparable conflict between state law and federal law arises in the case of recordings of musical performances. In regard to this category of “Writings,” Congress has drawn no balance; rather, it has left the area unattended, and" }, { "docid": "8635438", "title": "", "text": "additional relief under section 43(a) than it secured in the judgment. . Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), held that a state may not, through its law banning unfair competition, undermine federal patent rights by prohibiting the copying of an article that is protected by neither a federal patent nor a federal copyright. We held, however, in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204 (2d Cir.1979), that the monopoly rationale of Sears-Compco does not apply in a trademark infringement action, where the plaintiff does not assert exclusive rights to the sale of a product but merely to a mark indicating its origin or sponsorship. And in Keebler Co., 624 F.2d at 372-73, Judge Coffin’s opinion for the court held that the protection afforded by section 43(a) is \"cumulative of, and does not preempt, the broader consumer-oriented remedies provided by the common law of unfair competition”; thus section 43(a) created a new federal statutory tort and made pre-Lanham Act decisions based on the federal common law of unfair competition persuasive, even if not controlling. On this basis we see no reason for the district court not to apply the New York state law of unfair competition. . It appears that it may not be. See Avon Periodicals, Inc. v. Ziff-Davis Pub. Co., 282 A.D. 200, 201, 122 N.Y.S.2d 92, 93 (1953), aff’g 27 Misc.2d 160, 113 N.Y.S.2d 737 (Sup.Ct.1952); see also Pharmaceuticals, Inc. v. United Whelan Corp., 22 Misc.2d 532, 534, 197 N.Y.S.2d 22, 25 (Sup.Ct.1959) (proper test to determine whether New York unfair competition law violated is whether public likely to be confused by trade dress features taken as a whole). But cf. International Latex Corp. v. Flexees, Inc., 281 A.D. 363, 366, 119 N.Y.S.2d 409, 412 (1953) (nonunique packaging not protected from imitation). . Sanmark has argued at length that the use of a tape recording to refresh the witness Seymour Sunshine’s recollection, even though the" }, { "docid": "5673743", "title": "", "text": "to be applied in a claim for unfair competition. Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 780 (2d Cir. 1964), cert. denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965). The decisions of the Supreme Court in Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) do not change this rule. In Sears and Compco, the Court was concerned about the use of state unfair competition laws to extend the effective term of patent protection. While these two cases may apply by analogy to the use of common law copyright (Goldstein, Federal System Ordering of the Copyright Interest, 69 Colum.L.Rev. 49 (1969)), they have no bearing on trademarks.- Since the term of federal trademark protection is theoretically perpetual (assuming no abandonment), use of state unfair competition law to protect trademark registrants does not conflict with the federal policy “of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 237, 84 S.Ct. 779, 782 (1964). Where there is no federal policy in favor of creating a body of material in the public domain, there can be no conflict created by a state policy restricting unfair competition by granting greater protection than that available under federal trademark law. State law requires more than simple forbearance in use of a competitor’s name. “The critical question is whether customers are, or may be, misled.” Jean Patou, Inc. v. Jacqueline Cochran, Inc., 201 F.Supp. 861, 863 (S.D.N.Y. 1962), aff’d, 312 F.2d 125 (2d Cir. 1963). See also Coca-Cola Co. v. Snow Crest Beverages, 64 F.Supp. 980, 985 (D.Mass.1946). New York courts ask whether there is sufficient similarity between products to lead to a reasonable likelihood of confusion among purchasers. Fischer v. Blank, 138 N.Y. 244, 33 N.E. 1040 (1893); Ronson Art Metal Works, Inc. v. Gibson Lighter Mfg. Co., 3 A.D.2d 227, 159 N.Y.S.2d 606, 610, reargument denied, 3" }, { "docid": "23103284", "title": "", "text": "secondary meaning had been established); Harlequin Enterprises Ltd. v. Gulf & Western Corp., 644 F.2d 946, 949 n. 1, 210 USPQ 1, 3 n. 1 (2d Cir.1981) (considering sales success); cf. American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 663, 204 USPQ 609, 615-16 (2d Cir.1979) (extensive advertising alone does not resolve the issue). On this fact-dependent question, we discern no clear error in the district court’s finding that secondary meaning had been established. It is thus unnecessary to consider the alternative question of inherent distinctiveness, as discussed in Two Pesos. Likelihood of Confusion A Violation of § 43(a) requires, by statute, that there be a likelihood of confusion, mistake, or deception. “Similarity in overall appearance alone cannot establish source confusion as a matter of law.” Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 169, 18 USPQ2d 1907, 1913 (2nd Cir.1991). See Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1220, 4 USPQ2d 1541, 1543 (2d Cir.1987) (purpose of § 43(a) is to prevent consumer confusion as to a product’s source). If likelihood of confusion is avoided, copying of trade dress can not be prevented under § 43(a). The right to copy unpatented and uncopyrighted designs of articles of manufacture was stated in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661, 140 USPQ 524 (1964), reh’g denied, 376 U.S. 973, 84 S.Ct. 1131, 12 L.Ed.2d 87 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, 140 USPQ 528 (1964), reh’g denied, 377 U.S. 913, 84 S.Ct. 1162, 12 L.Ed.2d 183 (1964). The evolution of state and federal laws of unfair competition had led some commentators to criticize the reach of Sears and Compco, as the Court remarked in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 154, 109 S.Ct. 971, 979, 103 L.Ed.2d 118, 136, 9 USPQ2d 1847, 1853 (1989) (“The preemptive sweep of our decisions in Sears and Compco has been the subject of heated scholarly and judicial debate”). However, the Court in Bonito Boats" } ]

[ { "docid": "22747409", "title": "", "text": "untrustworthy. It is in this setting that a proper and fair standard must be erected for the employee to meet in carrying out his burden of proof. When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. See Note, 43 Col. L. Rev. 355. The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11 (c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible" } ]

[ { "docid": "8139062", "title": "", "text": "required a “great deal of manual work.” Although the court did not make an explicit finding that the nonmanual work criterion of § 541.2 was not satisfied, we feel that the court’s reasoning and conclusions are apparent and that the record supports the ruling. The district court recognized that 29 C.F.R. § 541.203(b) (1976) does not completely rule out the performance of “some manual work.” However, in examining the record here, the court found that the engineers’ maintenance duties involved a substantial amount of manual work, including the clean-up work which is part of the preventive maintenance inspection, the use of tools, instruments, and machinery required for the performance of maintenance, whether preventive or emergency, and the extensive truck driving previously noted. Thus the threshold of “some manual work” in 29 C.F.R. § 541.203(b) has been exceeded and the nonmanual work criterion has not been met. We are satisfied that the district court’s conclusion on this point is also correct. Therefore we affirm the ruling that the microwave system engineers were not within the exemption for bona fide administrative employees. Ill United Video also contends that the district court erred in awarding unpaid overtime compensation because the Secretary failed to meet its burden of proving the hours worked by United Video’s employees. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946), the Supreme Court stated: [A]n employee has carried out his burden [in a claim for back wages under the FLSA] if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate." }, { "docid": "20862571", "title": "", "text": "Assuming that Mr. Santelices was SFCC’s employee, Mr. Santelices must satisfy his burden of proof by sufficiently demonstrating that he is entitled to overtime compensation. Under Federal Rule of Civil Procedure 56(c), Mr. Santelices, as the non-movant, has the burden at summary judgment “to come forward with specific facts on each essential element of his claims showing that there is a genuine issue for trial such that a reasonable jury could find in his favor.” Matsushita Electric Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348. As previously noted, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position” is insufficient, “there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505. It is not the function of the court, however, to decide issues of material fact, and the court must avoid weighing conflicting evidence and making credibility determinations. See id. at 249, 255, 106 S.Ct. 2505. It is well-established that an employee who brings suit under § 16(b) of the FLSA for unpaid minimum wages or unpaid overtime compensation and liquidated damages has the initial burden of proving that he performed work for which he was improperly compensated. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir.1972). In Mt. Clemens, the Supreme Court established a shifting burden of proof applicable when the employee is unable to secure accurate records showing the precise extent of uncompensated work. The Supreme Court held that the employee has carried out his burden of proof if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the" }, { "docid": "6027630", "title": "", "text": "other lessees who, except for one, were present at trial but were not called to testify. The court refused to award back pay on the ground that the Secretary had “presented no proof upon which the Court could make a finding of fact that any of the eight * * * lessees performed any work upon which claims for back wages could be based[.]” The Secretary argues that the trial court erred in the proper application of the burdens of proof for establishing a claimant’s back pay entitlement. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-88, 66 S.Ct. 1187, 1191-92, 90 L.Ed. 1515 (1946), the Supreme Court set out the relevant standards to be applied to the situation where the employer has not kept the proper records for the amount of work performed: An employee who brings suit under § 16(b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. * * * [Where the employer fails to maintain proper records,] [i]n such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. The Secretary contends that he in fact presented sufficient evidence to meet the employee’s initial burden. The Secretary prepared earnings projections for the eight lessees based upon earnings statements, commissions, and the requirements of the leases, factoring in the hours the station was to be open plus the amount of the" }, { "docid": "3267018", "title": "", "text": "F.2d 251 (9th Cir. 1959); Sturdivant v. Salt River Valley Water Users’ Ass’n., 249 F.2d 944 (9th Cir. 1957). We believe the finding of bad faith was justified from the evidence in the record and that the trial court did not err in so finding and awarding liquidated damages for the year 1966. The trial court denied employees compensation for time worked during 1965 because it did not believe employees had met their burden of proof so as to be entitled to such compensation. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946), the court, in discussing the burden of proof of an employee seeking to recover wages for overtime, stated: “In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” After reviewing the exhibits and the testimony contained in the record, we are constrained to hold that the trial court erred in not awarding employees overtime compensation for the year 1965. We believe there is ample evidence in the record from which it can be “reasonably inferred” that employees not only worked overtime in 1965, but that the work was performed for an enterprise engaged in interstate commerce and that they were inadequately compensated therefor. Since the trial court was justified in finding that the employer wilfully failed to pay overtime, the three year statute of limitations, as provided in 29 U.S.C.A. § 255(a) is applicable and recovery for 1965 is not barred by the statute" }, { "docid": "23032495", "title": "", "text": "was aware that she was engaging in the unpaid overtime work. The Fair Labor Standards Act mandates that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). “ ‘An employer who is armed with [knowledge that an employee is working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.’” Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir.1995) (alteration in original) (quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981)). “[I]f the ‘employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of § 207.’ ” Id. (quoting Forrester, 646 F.2d at 414). An employee bringing an action pursuant to the FLSA, based on unpaid overtime compensation, must first demonstrate that she has performed work for which she alleges she was not compensated. See Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). An employee has met her requisite burden of proof if [she] proves that [she] has in fact performed work for which [she] was improperly compensated and if [she] produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee even though the result may only be approximate. Id. In the district court, Harvill’s argument against summary judgment" }, { "docid": "17219195", "title": "", "text": "plaintiffs regular hourly rate. See Pl.’s Pre-Trial Mem. of Law at 10 n. 8. Although Lee testified that he paid Yang based, on a 40 hour week (Tr. 77-78), 'considering both the fact of Lee’s consistently inconsistent testimony, and the observation that it would have been more advantageous to plaintiff to leave the 40 hour presumption unrebutted in order to raise his regular rate of pay and possible overtime damages, the Court adopts plaintiffs concession and finds that the weekly wage was intended to cover 50 hours of straight-time pay. In conclusion, the Court finds that defendants have failed to negate the reasonableness of the inference arising from plaintiffs evidence, and will adopt the wages to which plaintiff testified in calculating damages. B. Hours As with wages, it is also the employer’s responsibility to create and maintain records of employee hours. See 29 U.S.C. § 211(c); 29 C.F.R. § 516.2; N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.6. However, as the Supreme Court has explained: [WJhere the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. Mt. Clemens, 328 U.S. at 687-88, 66 S.Ct. 1187. Because defendants here did not produce admissible records of the hours plaintiff worked, plaintiff must produce “sufficient evidence” to show the hours he worked “as a matter of just and reasonable inference.” Id. Furthermore, it is possible for plaintiff to meet this burden by relying on his recollection alone." }, { "docid": "23332715", "title": "", "text": "S.Ct. 1187, 90 L.Ed. 1515 (1946); Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979); Johnson v. Dierks Lumber & Coal Co., 130 F.2d 115 (8th Cir. 1942). Inaccurate wage and hour information, however, is not always fatal to a claim for minimum wage or overtime compensation under the Act. Where the inaccuracy is due to the employer’s failure to keep adequate records as required by statute, imprecise evidence on quantum can provide a “sufficient basis” for damages. Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687, 66 S.Ct. at 1192; Marshall v. Mammas Fried Chicken, Inc., 590 F.2d 598 (5th Cir. 1979); Hodgson v. Jones, 434 F.2d 1061 (5th Cir. 1970). Under these circumstances, we have “in effect ordered the fact finder to do the best he could in assessing damages.” Mitchell v. Riley, 296 F.2d 614, 616 (5th Cir. 1961). As the Supreme Court observed in Anderson v. Mt. Clemens Pottery Co.: The solution ... is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. 328 U.S. at 687-688," }, { "docid": "16051645", "title": "", "text": "brings suit under § 16(b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies, however, militate against making that burden an impossible hurdle for the employee. Due regard must be given to the fact that it is the employer who has the duty under § 11(c) of the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed____ When the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result" }, { "docid": "3267017", "title": "", "text": "the premium should be credited against the employer’s liability. The evidence was in conflict as to whether the alleged “premium” pay was in fact a premium or was simply a part of the base pay to the employees. However, based on the evidence in the record, the trial court was justified in finding that the alleged “premium” pay was in fact only a part of the base pay of the employees, and that the employer not only knew that no premium was being paid, but that the parties had not contemplated any premium pay and considered the amount paid only as base pay. Since the trial court was justified in finding that no “premium” was contemplated, or in fact paid, it was further justified in finding the employer acted wilfully in failing to pay overtime. Notwithstanding employer’s protestations that there was no bad faith in the failure to pay overtime, this was a factual matter for the trial court to determine from the evidence. 29 U.S.C.A. § 260; Craig v. Far West Engineering Co., 265 F.2d 251 (9th Cir. 1959); Sturdivant v. Salt River Valley Water Users’ Ass’n., 249 F.2d 944 (9th Cir. 1957). We believe the finding of bad faith was justified from the evidence in the record and that the trial court did not err in so finding and awarding liquidated damages for the year 1966. The trial court denied employees compensation for time worked during 1965 because it did not believe employees had met their burden of proof so as to be entitled to such compensation. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946), the court, in discussing the burden of proof of an employee seeking to recover wages for overtime, stated: “In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The" }, { "docid": "23332716", "title": "", "text": "that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. 328 U.S. at 687-688, 66 S.Ct. at 1192. The unpaid wages awarded by the fact finder in this case reflect a conscientious adherence to the rule enunciated in Anderson v. Mt. Clemens. The record supports the magistrate’s finding that IT&T did not keep adequate records and that employees were ordered to report incomplete and deflated figures on overtime hours. Moreover, IT&T failed to produce any pertinent records in accordance with discovery orders for certain periods in 1967. Reeves introduced what he termed a “running total” of hours worked that he apparently kept in his mind during his employment. According to Reeves, he worked approximately 3100 uncompensated hours for IT&T. From this figure, Reeves estimates an average workweek of 74.5 hours. Reeves first testified to the running total in 1973. At that time, he conceded that the totals corresponded to the rough computations of his subconscious mind. Expressly cognizant of his duty under the circumstances to premise an award “upon as close an approximation as possible,” the fact finder based his calculations on an average workweek of 60 hours. We" }, { "docid": "20862572", "title": "", "text": "16(b) of the FLSA for unpaid minimum wages or unpaid overtime compensation and liquidated damages has the initial burden of proving that he performed work for which he was improperly compensated. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir.1972). In Mt. Clemens, the Supreme Court established a shifting burden of proof applicable when the employee is unable to secure accurate records showing the precise extent of uncompensated work. The Supreme Court held that the employee has carried out his burden of proof if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. 328 U.S. at 687-88, 66 S.Ct. 1187. In establishing this shifting burden of proof, the Supreme Court also stated that here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer ... It is enough under these circumstances if there is a reasonable inference as to the extent of the damages. Id. at 688, 66 S.Ct. 1187 (emphasis added). Thus, although the Supreme Court established a standard for awarding damages when the evidence of damages is inexact or imprecise, it did not eliminate the employee’s burden to prove that he has in fact performed work for which he was not paid. Although Mr. Santelices is" }, { "docid": "305346", "title": "", "text": "premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. * * * Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain. But here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case ‘it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.’ * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages.” 328 U.S. 680, 687-688; 66 S.Ct. 1187, 1192-1193. This principle was applied in Mitchell v. Caldwell, 249 F.2d 10 (10th Cir. 1957), an action by the Secretary of Labor to recover overtime pay for an employee and in Mitchell v. Del-Cook Lumber Co., 48 CCH Lab.Cas. ¶31,519 (M.D.Ga.1963), a civil contempt case. The Master" }, { "docid": "8139063", "title": "", "text": "for bona fide administrative employees. Ill United Video also contends that the district court erred in awarding unpaid overtime compensation because the Secretary failed to meet its burden of proving the hours worked by United Video’s employees. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946), the Supreme Court stated: [A]n employee has carried out his burden [in a claim for back wages under the FLSA] if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. See also Donovan v. Simmons Petroleum Corp., 725 F.2d 85-86 (10th Cir.1988); Bledsoe v. Wirtz, 384 F.2d 767, 771 (10th Cir.1967); Wirtz v. Lieb, 366 F.2d 412, 414 (10th Cir.1966). In this case, because the employer failed to keep accurate records of the hours worked by all of its employees, the Secretary was unable to show the precise extent of the employees’ uncompensated work. However, the Secretary was able to, and did, introduce deposition testimony of each of the employees, the employer’s payroll records, the compliance officer’s computations, and the compliance officer’s testimony on the method of his computations. In our judgment, this was sufficient evidence to establish, “as a matter of just and reasonable inference,” the number of overtime hours worked and the amount of unpaid compensation due. The burden then shifted to the employer “to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.” United Video has failed to produce precise records of the" }, { "docid": "6027631", "title": "", "text": "* * * [Where the employer fails to maintain proper records,] [i]n such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. The Secretary contends that he in fact presented sufficient evidence to meet the employee’s initial burden. The Secretary prepared earnings projections for the eight lessees based upon earnings statements, commissions, and the requirements of the leases, factoring in the hours the station was to be open plus the amount of the lessee’s compensation to be used for hired attendants. In addition, the Secretary presented the testimony of seventeen of the lessees concerning their overtime employment. We find that the Secretary’s presentation, while adequate to establish that the eight lessees were entitled to overtime compensation, did not produce “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. at 687, 66 S.Ct. at 1192. Standing alone, the projections of the Secretary concerning the hours worked by the lessees were sufficient to meet the employees’ initial burden. The company, however, substantially rebutted the projections as applied to the seventeen lessees who did in fact testify. The court awarded less than fifty percent of the amount claimed. This reduction was primarily the result of cross-examination of the lessees by the company. The validity of the Secretary’s wage projections as applied to the other eight lessees who did not testify was thereby undermined. At this point, the District Court should have required the Secretary to introduce more direct evidence on" }, { "docid": "6240199", "title": "", "text": "and overtime compensation. In this connection, in Neal v. Braughton, D.C.W.D.Ark., Ill F.Supp. 775, 779, the court said: “The burden of proof is upon the employee to establish by a preponderance of the evidence the number of hours of overtime worked each week and the amount of wages due each pay period, and he must produce evidence sufficient to permit a finding without resort to conjecture that he worked a definite number of overtime hours. Mornford v. Andrews, 5 Cir., 151 F.2d 511; Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, certiorari denied 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 118; Rankin v. Jonathan Logan, Inc., D.C.N.J., 98 F.Supp. 1; Marchant v. Sands Taylor & Wood Co., D.C. Mass., 75 F.Supp. 783; Bloch v. Bell, D.C.Ky., 63 F.Supp. 863; Davies v. Onyx Oils & Resins, Inc., D.C.N.J., 63 F.Supp. 777; 169 A.L.R. 1337. “However, if an employee proves that he has in fact performed work for which he was not compensated as required by law, and introduces sufficient evidence to establish the amount and extent of that work as a matter of just and reasonable inference, then the burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the employee’s evidence. If the employer does not produce such evidence, the Court may award damages to the employee even though the result is only an approximation. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515; Handler v. Thrasher, 10 Cir., 191 F.2d 120.” Thus, as above stated, if plaintiff were covered by the Act, she would be entitled to recover $2,000. Plaintiff also contends that she would be entitled to recover liquidated damages, but the Court cannot sustain this contention. In Neal v. Braughton, supra, the court at page 780 of 111 F.Supp. said: “If an employer acts in good faith and has reasonable grounds for believing that his actions are in conformity" }, { "docid": "23359478", "title": "", "text": "Feliciano and Milan were intended to compensate them for only forty hours of work. Feliciano and two other former installers testified that Leiva agreed to pay them a weekly salary for forty hours of work, and although Milan testified that he did not know how many hours his weekly pay was intended to compensate, there was no reason to believe that his compensation was structured differently. Under these circumstances, we cannot say that the evidence points overwhelmingly in favor of Appellants or that the jury’s verdict was against the great weight of the evidence. Therefore, the district court was correct to deny Appellants’ Rule 50 motion on the fluctuating workweek method. 3. Overtime Hours Appellants argue that the district court should have granted their Rule 50 motion because the evidence of Felici-ano’s and Milan’s overtime hours was insufficient to support the jury’s verdict. The FLSA places upon the employee-plaintiff “the burden of proving that he performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). However, if the employer failed to keep time records, as in this case, that burden is relaxed. Specifically, in that circumstance an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. Id. at 687-88, 66 S.Ct. 1187. In this case, there was sufficient testimony regarding the hours Feliciano and Milan regularly worked to allow the jury to approximate the hours they actually worked in each week for which they sought to recover unpaid" }, { "docid": "9959335", "title": "", "text": "indicates that she appeared punc tually on each one of these days at eight o’clock. The conclusion is forced that her private record was unworthy of belief. In her first letter of complaint regarding her discharge and in which she asked for severance pay, the omission of any reference to overtime is significant. We conclude that the trial court was on a sound basis when it held there was a failure of proof as to this particular employee. We do not find the situation comparable to that referred to by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, rehearing denied, 329 U.S. 822, 67 S.Ct. 25, 91 L.Ed. 699. There the Supreme Court stated, 328 U.S. at page 687, 66 S.Ct. at page 1192: “In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Here the Secretary did not carry out his burden of establishing that Mrs. Wait-man in fact performed work for which she was improperly compensated and accordingly there was no shifting of responsibility to the employer to come forward with evidence as to the precise amount of work performed nor justification or basis to award damages that might be only approximate. No. 16,540 is affirmed. No. 16,541 is reversed with directions to enter the requested injunction." }, { "docid": "16778625", "title": "", "text": "plaintiffs’ evidence as to the number of hours they worked for him was insufficiently precise to support the court’s award of unpaid wages. However, when, as here, the employer has not complied with his duty under 29 U.S.C. § 211(c) to keep records of his employees’ hours, “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946); see also Mitchell v. Caldwell, 249 F.2d 10 (10th Cir.1957). Each plaintiff in the instant case testified regarding the approximate number of hours he or she worked for Elias. Elias offered testimony that at least some of plaintiffs’ figures were exaggerations. It is the job of the trial court to assess the credibility of witnesses and resolve conflicting testimony. Its conclusions as to the number of hours that plaintiffs worked, although admittedly approximations, are supported by the evidence and thus are not clearly erroneous. V In their cross-appeals plaintiffs contend that the district court erred in not awarding plaintiffs liquidated damages. An employer that violates the FLSA is ordinarily liable for both unpaid wages and an additional equal amount as liquidated damages. 29 U.S.C. § 216(b). However, 29 U.S.C. § 260 provides: “In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act" }, { "docid": "11182426", "title": "", "text": "Court does not condone the defendant’s violation of thé Fair Labor Standards Act in failing tó keep detailed records' as to the actual hours worked by each employee coming within‘the terms of the Act, such a failure on the part of the defendant cannot serve as positive evidence to establish that the plaintiff did in fact work over time hours for which he did not receive compensation. This breach of duty by the defendant, although serving to discredit defendant’s position generally, does not of itself, in the absence of some convincing proof by plaintiff as to the number of hours worked in excess of forty, entitle the plaintiff to a judgment. The governing rule was enunciated in Anderson v. Mt. Clemens Pottery Co., wherein the Supreme Court said: «* * * we h0i¿i an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the re-suit be. only approximate. * * *” Thus, although the employee is relieved of a portion of the burden of proof insofar as establishing with exactitude the number of overtime hours worked, he still must produce “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference” before any burden is shifted to the employer. The employee in' this case has failed to produce such evidence; and, the defendant is entitled to judgment. A journal entry which conforms with this opinion should be submitted by counsel within fifteen days. . 29 U.S.C.A. § 201 et seq. . See Wilkinson v. Noland Co., D.C.Va. 1941, 40 F.Supp. 1009," }, { "docid": "15275680", "title": "", "text": "an overtime claim based on an estimate so long as the estimate was reasonable. In a related context, courts have approved of estimates to satisfy an employee’s burden of proof in cases brought under the Fair Labor Standards Act (“FLSA”) seeking unpaid wages or overtime compensation. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) superseded by statute on other grounds as stated in United States v. Cook, 795 F.2d 987, 990-91 (Fed.Cir.1986); Arias v. U.S. Serv. Indus., Inc., 80 F.3d 509, 511 (D.C.Cir.1996). In cases where an employer has failed to keep accurate records in accordance with FLSA requirements: an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. Anderson, 328 U.S. at 687-88, 66 S.Ct. 1187 (emphases added). We conclude that Leatherbury was entitled to submit an estimate for his overtime claim. Nor can the Board’s decision be sustained on the second theory — that Leath-erbury’s submission was not an estimate but rather an exact calculation. The Board concluded: [Njowhere in the “Time History” did [Leatherbury], or anyone else, note that the figures and calculations presented in the document, apart from perhaps the interest rates cited and [Leatherbury’s] 1996 salary, were mere estimates; instead, the “Time History” appears to represent an exact accounting of the overtime compensation owed to the appellant between 1996 and 2001. The dollar figures presented in the “Time History” were calculated to the exact penny, without any hint or acknowledgment that the figures were anything less than a" } ]

[ { "docid": "10705453", "title": "", "text": "and (2) the fees incurred in collecting only post-petition debt to determine the amount for the Personal Judgment. Without more detailed exhibits or documents from the Association showing how its counsel allocated her time, the court is unable to determine whether these attorney’s fees were incurred in collecting pre- or post-petition debts and, as a result, whether these fees themselves constitute pre- or post-petition debt. The court is therefore not persuaded that the charge for attorney’s fees totaling $955.88 was proper, and the court notes that this appears to be a substantial sum of attorney’s fees for the calculation and inclusion of a minimal post-petition debt in the Default Judgment. Civil Contempt Authority under § 105(a). A party injured by a violation of the discharge injunction has no private cause of action for damages under § 524 or § 105. Walls v. Wells Fargo Bank, 276 F.3d 502, 504 (9th Cir.2002). Rather, a violation under § 524(a) is enforced through the bankruptcy court’s contempt authority under § 105(a). Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002); Walls, 276 F.3d at 507. The court’s contempt authority under § 105(a) is only a civil contempt authority and allows only for civil sanctions as the appropriate remedy. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1192 (9th Cir.2003) (considering contempt sanctions in context of stay violation). Civil sanctions must either be compensatory or designed to coerce compliance. Id. (citation omitted). For a discharge violation, “compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorneys fees, and the offending creditor’s compliance with the discharge injunction.” Walls, 276 F.3d at 507. “[T]he [aggrieved debtor] seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified.” ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir.2006). And to justify sanctions, the debtor must prove (1) that the offending creditor knew the discharge injunction was applicable and (2) that the creditor intended the actions which violated the injunction. Bennett, 298 F.3d at 1069 (citation omitted). After the debtor meets" } ]

[ { "docid": "9826931", "title": "", "text": "423 (quoting Kelvin v. Avon Printing Co., 1995 WL 734481 at *4 (6th Cir.1995) (unpublished)). In any event, § 105(a) authorizes only such remedies as are “necessary or appropriate to carry out the provisions of this title.” “[C]ivil contempt is the normal sanction for violation of the discharge injunction.” 4 Collier on Bankruptcy ¶ 524.02[2][e] (15th ed. 1999). Here, as Wells Fargo acknowledges, compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorneys fees, and the offending creditor’s compliance with the discharge injunction. Therefore, contempt is the appropriate remedy and no further remedy is necessary. See Pertuso, 233 F.3d at 423; see also Cox v. Zale Delaware, Inc., 239 F.3d 910, 917 (7th Cir.2001) (suit for violation of § 524 can only be brought as contempt action). B Alternatively, Walls contends that Congress intended for § 524 to be enforced, and that the Cort factors favor finding an implied private right of action to do so. Wells Fargo counters that § 524 on its face does not expressly authorize any action for enforcement of its provisions, as both Walls and the Ninth Circuit Bankruptcy Appellate Panel recognize. See In re Bassett, 255 B.R. 747 (B.A.P. 9th Cir. 2000). Nor, it submits, does one arise by implication. Walls relies heavily on the fact that debtors are intended to be protected by § 524. From § 524(a)(2) and (c), she infers a specific right to be free from additional collection by a creditor post discharge. Given such a substantive right in her favor, Walls submits that the court should not refuse to imply a cause of action. See Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1125 (9th Cir.2000). While neither the Supreme Court nor our court has abandoned consideration of all the Cort factors, including whether the plaintiff is a member of the class for whose benefit the statute was enacted, it is clear that the critical inquiry is whether Congress intended to create a private right of action. Alexander" }, { "docid": "10705455", "title": "", "text": "her burden, the burden then shifts to the creditor to demonstrate why it was unable to comply with the discharge injunction. See id. (citation omitted). As to the first element of knowledge, a party cannot be held in contempt for violating an injunction absent actual knowledge of that injunction, and whether a party had such knowledge is a question of fact. ZiLOG, 450 F.3d at 1008 (citations omitted). Here, the Association knew that the Debtor’s discharge injunction applied to all further proceedings in the State Court Action. The Association filed a copy of the discharge order in the State Court Action in order to continue prosecuting its suit against the Debtor. The second element requiring an intentional act has also been met because the Association intended to apply for and obtain the Default Judgment. The Association could argue that it had a good faith belief that it was seeking a money judgment of only post-petition debts. However, the focus of the court’s inquiry in contempt proceedings under § 105(a) is not on the subjective belief or intent of the offending creditor in complying with the injunction but on whether, in fact, the creditor’s conduct complied with the injunction at issue. Dyer, 322 F.3d at 1191 (citation omitted). It does not matter that the Association honestly believed that its actions were proper and that it only intended to pursue the Debtor for post-petition debts. All that matters is that the Association, in fact, violated the discharge injunction, meaning that it intended the actions that resulted in a violation of the injunction, that it knew of the injunction, and that the injunction applied to its actions. Sanctions. Since the Debtor has met her burden, she has established that sanctions are justified in this case, and she has requested an award of attorney’s fees. As stated by the Ninth Circuit, an award of attorney’s fees to the aggrieved debtor is an appropriate sanction for violating the discharge injunction. See Walls, 276 F.3d at 507. But when the court awards reasonable attorney’s fees as a sanction, the court must consider two factors: “(1) what" }, { "docid": "2312772", "title": "", "text": "and May 2005, long after the Debtors’ discharge, Lenahan made further efforts to collect the debt allegedly owed to Providian. I find, therefore, that Lenahan knew or should have known of the existence of the discharge injunction and that its post-discharge collection efforts was a willful violation of the discharge injunction and that the nature of the contacts with the Debtors was egregious. Lenahan did not appear for this hearing and has failed to provide the court with any explanation as to why it was unable to comply with the terms of the discharge injunction. Accordingly, I find Lenahan in contempt of court based on its violation of the discharge injunction. Contempt Sanctions under Section 105(a) 1. Punitive Damages In its April 2005, telephone message Lenahan represented that the call had been placed by a representative of the County Clerk’s office, that civil and possibly criminal charges had been filed against Ms. Feldmeier, and that Mr. Lenahan was a prosecuting attorney employed by the County. These representations were false and Lenahan knew or should have known that they were false. This conduct, clearly designed to scare the Debtors into paying the debt allegedly owed to Providian, was egregious and warrants the imposition of sanctions. Had I the power to do so, I would award punitive damages to the Debtors based on this conduct. Unfortunately, I do not. See Knupfer v. Lindblade, 322 F.3d 1178, 1193 (9th Cir.2003). “Rather, the language of § 105(a) authorizes only those remedies ‘necessary’ to enforce the bankruptcy code. The sanctions associated with civil contempt — that is, compensatory damages, attorney fees, and the offending creditor’s compliance — adequately meet that goal.” Id. at 1193 (citation omitted). 2. Compensatory Damages The Debtors provided no evidence as to any actual monetary damages, beyond their attorneys’ fees, sustained by them. They contend, however, that in addition to recovering their attorney’s fees, they are entitled to emotional distress damages based on Lenahan’s violation of the discharge injunction. The issue of whether emotional distress damages are available for violations of the discharge injunction has not been addressed by the Ninth" }, { "docid": "2312770", "title": "", "text": "the commencement or continuation of an action ... to collect, recover or offset any [discharged] debt as a personal liability of the debtor .... ” Section 524 does not provide a private right of action for debtors injured by a creditor’s violation of the discharge injunction. Walls v. Wells Fargo Bank, 276 F.3d 502, 509 (9th Cir.2002). However, “[S]eetion 524(a) may be enforced by the court’s contempt power under 11 U.S.C. section 105(a). See Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 509 (9th Cir.2002) (footnote omitted); see also Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 284 (9th Cir.1996) (noting that ‘[t]here can be little doubt that bankruptcy courts have the inherent power to sanction vexatious conduct presented before the court’ as recognized by the statutory grant of power to the bankruptcy courts under 11 U.S.C. section 105(a)), accord Bessette v. Avco Financial Servs., Inc., 230 F.3d 439, 444-445 (1st Cir.2000); Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388-89 (11th Cir.1996). The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999) (citation omitted). As discussed by the Eleventh Circuit in Hardy, to justify sanctions, the movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction. See Hardy, 97 F.3d at 1390 (citing Jove Eng’g, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996)). Renwick v. Bennett {In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002). Here the Debtors established that Lenahan had actual knowledge of their bankruptcy filing as of March 2004, when Ms. Johnson spoke with a representative of the firm and advised him of that filing. She asked if the firm wanted documentation and was told no. Despite that fact, in April" }, { "docid": "19735509", "title": "", "text": "the proposed plan on the ground that there has not been a proper undue hardship finding. The debtor must then procure such a finding by bringing an adversary proceeding and serving the creditor with a complaint and summons. As Judge Ryan points out in his well-reasoned dissent, the creditor in Repp (like the one in our case) was not subjected to any kind of unfairness: It should be pointed out that ECMC was a creditor, had filed a claim, and knew or should have known that its rights could be affected by the plan. It cannot stick its head in the sand, ignore the plan terms, and later claim foul play because it is adversely impacted by the plan. Due process does not place substance over form. Here, the substance is that ECMC had actual knowledge of the plan terms and chose to default. It cannot now seek a second bite of the apple by way of a due process argument. Id. at 156. The Repp majority would have done well to adopt the view of its dissenting colleague and follow circuit law as announced by Pardee and In re Gregory. In re Repp and cases following it are overruled. See, e.g., Sallie Mae Servicing Corp. v. Ransom (In re Ransom), 336 B.R. 790, 797-98 (9th Cir.BAP2005). . As we held in Zilog: A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. We cited with approval the standard adopted by the Eleventh Circuit for violation of the discharge injunction: \"[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” 450 F.3d at 1007 (citing" }, { "docid": "3156254", "title": "", "text": "or continuation of an action, the employment of process, or an act, to collect, recover or offset any ... debt [subject to such discharge] as a personal liability of the debt- or, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2). By its terms, this statute prohibits affirmative action by a creditor to collect a discharged debt from a debtor. However, the Bankruptcy Code provides no private right of action to a debtor when a creditor violates the discharge injunction. See 11 U.S.C. § 524; Walls v. Wells Fargo Bank, 276 F.3d 502, 508-09 (9th Cir.2002); Cady v. SR Fin. Services (In re Cady), 385 B.R. 756, 757-58 (Bankr.S.D.Cal.2008); Barrientos v. Wells Fargo Bank, 2009 WL 1438152, *4, *5 (S.D.Cal. May 20, 2009). Therefore, a debtor may seek damages for violation of the injunction only by invoking the court’s power under 11 U.S.C. § 105(a) to redress contempt. A party who knowingly violates the discharge injunction can be held in civil contempt of court. See Espinosa v. United Student Aid Funds, Inc., 553 F.3d 1193, 1205 n. 7 (9th Cir.2008) (citing Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002)). Section 105(a) provides: “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” The party seeking sanctions for contempt has the burden of proving, by clear and convincing evidence, that the sanctions are justified. Namely, the debtors must prove that the creditor (1) knew the discharge injunction was applicable, and (2) intended the actions which violated the injunction. See ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir.2006) (quoting Bennett at 1069). II At the end of 2007 Mr. Nordlund retired from his practice" }, { "docid": "21983101", "title": "", "text": "would be prejudiced by the late-filing of the women’s claims. See Pioneer, 507 U.S. at 389, 113 S.Ct. 1489. In any event, to the extent that ZiLOG is prejudiced as a result of its own deficient lawyering, the burden of such errors or malfeasance must be borne by those who caused it, rather than by innocent creditors who were misled thereby. After Pioneer and Pincay, we have little difficulty in concluding that the bankruptcy court here abused its discretion in failing to find excusable neglect. See Fed. R. Bankr.9006(b)(l) (“[W]hen an act is required or allowed to be done at or within a specified period by these rules ... the court for cause shown may at any time in its discretion ... on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.”). We remand to the bankruptcy court to permit the women to file their pre-petition claims in the bankruptcy proceedings as timely. Similarly, in the event that the bankruptcy court determines that the women’s discrimination claims came within their fair contemplation after the filing of the bankruptcy petition but before its April 30 confirmation order, the bankruptcy court shall permit those claims to be filed as timely administrative expenses. (Of course, if the discrimination claims are found to have accrued after April 30, 2002, the women may pursue those claims outside of the bankruptcy proceedings.) Sanctions Award Section 524 of the bankruptcy code provides that discharge “operates as an injunction against the 'commencement or continuation of an action ... to collect, recover or offset any [discharged] debt as a personal liability of the debtor.” 11 U.S.C. § 524(a)(2). A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party" }, { "docid": "18984408", "title": "", "text": "an objection under section 727 expired long before C & W filed its complaint. b. C & W identifies no fraudulent conduct done “in or in connection with the [bankruptcy] ease.” Even if Mr. Domog-ma had forged the Account application (and she did not), she did so long before she filed her bankruptcy case. 23. Section 727(d) permits the court to revoke a discharge that was obtained through fraud. This section is also inapplicable. a. The time to assert a claim under section 727(d) has run, see section 727(e). b. The alleged fraud of which C & W complains had nothing to do with the issuance of the discharge. D. Violation of Discharge Injunction 24. A discharge “operates as an injunction against the commencement or continuation of an action ... to collect, recover or offset any [discharged] debt as a personal liability of the debtor.” 11 U.S.C. § 524(a)(2) (2006). A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the Bankruptcy Code. See In re Zilog, 450 F.3d 996, 1007 (9th Cir.2006); Walls v. Wells Fargo Bank, N.A. (In re Walls), 276 F.3d 502, 507 (9th Cir.2002). Section 105(a) permits the bankruptcy court to “issue any order ... that is necessary or appropriate to carry out the provi sions of this title.” An award of damages under section 105(a) is discretionary. United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 767 (9th Cir. 1994); In re Pace, 67 F.3d 187, 193 (9th Cir.1995). The party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. In re Bennett, 298 F.3d 1059, 1069 (9th Cir.2002). “[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” Id. (citing Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996)). 25. C & W has admitted that it found out about Ms. Domogma’s bankruptcy proceeding and discharge in January 2003. Its subsequent actions to collect the Account were intentional." }, { "docid": "8727396", "title": "", "text": "the nature of a reasonableness determination, which, as we discuss below, is the standard for awarding attorneys' fees as damages. . The “primary difference between proceeding on the basis of the language of § 362(h) on one hand, and civil contempt on the other, is the mandatory nature of an award of damages as to the former compared to the permissive nature of such an award under the latter.” Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir.1993). Another difference is that punitive damages can be awarded under § 362(h), but not under civil contempt. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (in a private action to enforce the discharge injunction, \"compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorneys fees, and the offending creditor’s compliance with the discharge injunction\"). . In California, an attorney must report to the State Bar, \"in writing, within 30 days of the time the attorney has knowledge of” ... \"[t]he imposition of any judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).” Cal.Bus. & Prof.Code § 6068(o)(3) (West, WESTLAW through 2002 legislative session)." }, { "docid": "18984409", "title": "", "text": "F.3d 996, 1007 (9th Cir.2006); Walls v. Wells Fargo Bank, N.A. (In re Walls), 276 F.3d 502, 507 (9th Cir.2002). Section 105(a) permits the bankruptcy court to “issue any order ... that is necessary or appropriate to carry out the provi sions of this title.” An award of damages under section 105(a) is discretionary. United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 767 (9th Cir. 1994); In re Pace, 67 F.3d 187, 193 (9th Cir.1995). The party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. In re Bennett, 298 F.3d 1059, 1069 (9th Cir.2002). “[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” Id. (citing Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996)). 25. C & W has admitted that it found out about Ms. Domogma’s bankruptcy proceeding and discharge in January 2003. Its subsequent actions to collect the Account were intentional. 26. C & W contends its actions were not a willful violation because it believed that the Account was not discharged pursuant to section 523(a)(3)(B), which provides that the bankruptcy discharge does not discharge an individual debtor from any debt— (3) neither listed nor scheduled under section 521(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit— (B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for . a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request.... 27. C & W takes the position that it was entitled to collect the Account from Ms. Domogma despite the discharge because C & W believed that the Account was covered by section 523(a)(2), and that it could do so even though" }, { "docid": "16109483", "title": "", "text": "Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir.1995). 2. Bankruptcy Court’s Contempt Authority Nonetheless, we have held that the Trustee may be entitled to recovery for violation of the automatic stay “under section 105(a) as a sanction for ordinary civil contempt.” Id. at 193; accord Calif. Employment Dev. Dep’t v. Taxel (In re Del Mission), 98 F.3d 1147, 1152 (9th Cir.1996). Although the availability of civil contempt sanctions under § 105(a) has a checkered past in our circuit, the recent precedent makes clear that this remedy is available. Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002); Walls v. Wells Fargo Bank, 276 F.3d 502, 507 (9th Cir.2002). Because the Trustee recovers under the contempt authority of § 105(a), rather than under § 362(h), however, the sanction award must conform to the legal standards governing that authority. Walls, 276 F.3d at 507. We have implied, in passing, that the contempt remedy is nearly identical to the remedy available to an individual under § 362(h), except for the permissive nature of the contempt authority. Del Mission, 98 F.3d at 1152. But careful reflection reveals important distinctions between § 105(a) and § 362(h), including, as we will develop, different availability of punitive damages. Walls made clear that § 105(a), as a discrete statutory provision with its own standards and limitations, is simply not a vehicle for enforcing other provisions of the bankruptcy code. In Walls, Wells Fargo Bank attempted to collect a pre-bankruptcy debt from Marie Walls, in violation of the automatic discharge injunction created by § 524(a)(2). The debtor brought a class action suit against Wells Fargo on behalf of herself and similarly situated debtors. The district court dismissed the suit, concluding that Walls’ only remedy was a civil contempt proceeding in bankruptcy court under § 105(a). We affirmed. Noting that “it is not up to us to read other remedies into the carefully articulated set of rights and remedies set out in the Bankruptcy Code,” we rejected Walls’ invitation to read § 105(a) as a catch-all private right of action for the enforcement of other" }, { "docid": "15079356", "title": "", "text": "524(a) for the reasons discussed above. Based on the foregoing, we find that the BAP did not err in affirming the bankruptcy court’s judgment in favor of Bennett on the Renwicks’ contract claims. TV. BENNETT’S CROSS-APPEAL A. Attorneys’Fees Under Federal Law We have recently held that section 524(a) may be enforced by the court’s contempt power under 11 U.S.C. section 105(a). See Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 509 (9th Cir.2002); see also Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 284 (9th Cir.1996) (noting that “[t]here can be little doubt that bankruptcy courts have the inherent power to sanction vexatious conduct presented before the court” as recognized by the statutory grant of power to the bankruptcy courts under 11 U.S.C. section 105(a)), accord Bessette v. Avco Financial Servs., Inc., 230 F.3d 439, 444-445 (1st Cir.2000); Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388-89 (11th Cir.1996). “The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999) (citation omitted). As discussed by the Eleventh Circuit in Hardy, to justify sanctions, the movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction. See Hardy, 97 F.3d at 1390 (citing love Eng’g, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996)). Therefore, the bankruptcy court clearly had discretion to impose sanctions under section 105(a). The principal questions to be resolved in this appeal are whether (1) the bankruptcy court correctly concluded that the issue of sanctions under federal law was not before it because Bennett failed to properly plead a violation of section 524(a) as a counterclaim and (2) the BAP correctly affirmed the bankruptcy court based on its finding that the “trial court was not," }, { "docid": "3156286", "title": "", "text": "at 4. In reaching its conclusion, the court has considered also that BofA was well-aware of the debtors’ intention to surrender the property to it. On the information sheet of BofA’s motion for relief from stay, filed on July 31, 2009, BofA noted that “[pjursu-ant to debtors’ statement of intent, the debtors intend to surrender the property.” See Docket No. 19. And, BofA was aware that the debtors had vacated the property in late October 2009 because BofA had been sending its representatives to inspect the property every month. See Judith Nordlund Decl. at 2; see also John Nord-lund Decl. at 4. Ill This leaves the question of a remedy. When a party acts in contempt of court by violating a debtor’s discharge, the bankruptcy court may award the debt- or “compensatory damages, attorneys fees, and [coerce] the offending creditor’s compliance with the discharge injunction.” See Walls v. Wells Fargo Bank, 276 F.3d 502, 507 (9th Cir.2002). However, this court may not award “serious punitive penalties” for a violation of the discharge injunction. See In re Dyer, 322 F.3d 1178, 1193-94 (9th Cir.2003). A Here, the court is particularly concerned, given BofA’s willingness to continue sending correspondence to the debtors, even after the filing of the contempt motion, and given Mr. Nordlund’s serious medical condition, that the bank will continue to make unlawful demands on the debtors. Therefore, if a further written communication is sent directly to the debtors, the court will require BofA to pay $1,000 to the debtors. For each additional written communication sent to the debtors, BofA will pay $500 more than paid for the prior communication sent to the debtors. See Dyer at 1192 (holding that “[c]ivil penalties [under the court’s contempt authority of section 105(a) ] must either be compensatory or designed to coerce compliance”). If BofA concludes that it is required by law or agreement to give a notice or other written communication to the debtors, it shall be given to their attorney. B Mrs. Nordlund testified that she missed 12 hours of work to appear at the evidentiary hearing. She receives $34 an" }, { "docid": "8727395", "title": "", "text": "vehicle, which it did, according to those arrangements and without formal foreclosure. Id. at 166. The debtors then filed a motion for sanctions, requesting attorneys’ fees incidental to the motion for sanctions, noneco-nomic damages of $5,000 and punitive damages. Id. The bankruptcy court denied the debtors' motion, and we affirmed, finding that the debtors would not have incurred attorneys’ fees but for the bringing of the motion. We found that the debtors intended to return the vehicle anyway, and their \"injury” consisted of noncompensable inconvenience and annoyance that the bank did not go through the formalities. Id. at 168. We determined that the bank's act did not rise to the level of egregious misconduct to support punitive damages. Id. We held, moreover, that no punitive damages should be awarded in the absence of actual damages. Id. Basically, in McHenry the debtors did not have any actual damages or injury due to the stay violation because their attorneys’ fees were incurred in the filing of an unnecessary motion for sanctions. Id. This finding was more in the nature of a reasonableness determination, which, as we discuss below, is the standard for awarding attorneys' fees as damages. . The “primary difference between proceeding on the basis of the language of § 362(h) on one hand, and civil contempt on the other, is the mandatory nature of an award of damages as to the former compared to the permissive nature of such an award under the latter.” Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir.1993). Another difference is that punitive damages can be awarded under § 362(h), but not under civil contempt. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (in a private action to enforce the discharge injunction, \"compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorneys fees, and the offending creditor’s compliance with the discharge injunction\"). . In California, an attorney must report to the State Bar, \"in writing, within 30 days of the time the attorney has knowledge of” ... \"[t]he imposition of any judicial sanctions against" }, { "docid": "2312773", "title": "", "text": "known that they were false. This conduct, clearly designed to scare the Debtors into paying the debt allegedly owed to Providian, was egregious and warrants the imposition of sanctions. Had I the power to do so, I would award punitive damages to the Debtors based on this conduct. Unfortunately, I do not. See Knupfer v. Lindblade, 322 F.3d 1178, 1193 (9th Cir.2003). “Rather, the language of § 105(a) authorizes only those remedies ‘necessary’ to enforce the bankruptcy code. The sanctions associated with civil contempt — that is, compensatory damages, attorney fees, and the offending creditor’s compliance — adequately meet that goal.” Id. at 1193 (citation omitted). 2. Compensatory Damages The Debtors provided no evidence as to any actual monetary damages, beyond their attorneys’ fees, sustained by them. They contend, however, that in addition to recovering their attorney’s fees, they are entitled to emotional distress damages based on Lenahan’s violation of the discharge injunction. The issue of whether emotional distress damages are available for violations of the discharge injunction has not been addressed by the Ninth Circuit. Those courts which have addressed the issue have come to differing conclusions. See McBride v. Coleman, 955 F.2d 571, 577 (8th Cir.1992) (“we do not believe civil contempt to be an appropriate vehicle for awarding damages for emotional distress .... The problems of proof, assessment, and appropriate compensation attendant to awarding damages for emotional distress are troublesome enough in the ordinary tort case, and should not be imported into civil contempt proceedings ... the con tempt power is not to be used as a comprehensive device for redressing private injuries, and it does not encompass redress for injuries of this sort.”), Burd v. Walters (In re Walters), 868 F.2d 665, 670 (4th Cir. 1989) (“no authority is offered to support the proposition that emotional distress is an appropriate item of damages for civil contempt, and we know of none.”), In re Bock, 297 B.R. 22, 29 (Bankr.W.D.N.C.2002)(“ emotional distress damages are not recoverable in a civil contempt proceeding”) But see U.S. v. Torres, 309 B.R. 643, 650 (1st Cir. BAP 2004) (an award of" }, { "docid": "19735510", "title": "", "text": "of its dissenting colleague and follow circuit law as announced by Pardee and In re Gregory. In re Repp and cases following it are overruled. See, e.g., Sallie Mae Servicing Corp. v. Ransom (In re Ransom), 336 B.R. 790, 797-98 (9th Cir.BAP2005). . As we held in Zilog: A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. We cited with approval the standard adopted by the Eleventh Circuit for violation of the discharge injunction: \"[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” 450 F.3d at 1007 (citing Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002) (citing Hardy v. United States {In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996))). That the creditor may have believed that the discharge was inappropriately entered, or that it could be set aside under Rule 60(b), is of no consequence. A creditor is not free to violate the discharge injunction because it has doubts as to the validity of the discharge. If the creditor believes the discharge is defective, it may petition the bankruptcy court to reopen and set aside the judgment under Rule 60(b), but it may not commence collection proceedings unless and until the court grants such relief. If the bankruptcy court finds that the creditor here willfully violated the injunction, it shall, at the very least, impose sanctions to the extent necessary to make Espinosa whole. See 2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2][c] (“In cases in which the discharge injunction was violated willfully, courts have awarded debtors actual damages, punitive damages and attorney’s fees.”) (footnote omitted)." }, { "docid": "2312771", "title": "", "text": "a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999) (citation omitted). As discussed by the Eleventh Circuit in Hardy, to justify sanctions, the movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction. See Hardy, 97 F.3d at 1390 (citing Jove Eng’g, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996)). Renwick v. Bennett {In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002). Here the Debtors established that Lenahan had actual knowledge of their bankruptcy filing as of March 2004, when Ms. Johnson spoke with a representative of the firm and advised him of that filing. She asked if the firm wanted documentation and was told no. Despite that fact, in April and May 2005, long after the Debtors’ discharge, Lenahan made further efforts to collect the debt allegedly owed to Providian. I find, therefore, that Lenahan knew or should have known of the existence of the discharge injunction and that its post-discharge collection efforts was a willful violation of the discharge injunction and that the nature of the contacts with the Debtors was egregious. Lenahan did not appear for this hearing and has failed to provide the court with any explanation as to why it was unable to comply with the terms of the discharge injunction. Accordingly, I find Lenahan in contempt of court based on its violation of the discharge injunction. Contempt Sanctions under Section 105(a) 1. Punitive Damages In its April 2005, telephone message Lenahan represented that the call had been placed by a representative of the County Clerk’s office, that civil and possibly criminal charges had been filed against Ms. Feldmeier, and that Mr. Lenahan was a prosecuting attorney employed by the County. These representations were false and Lenahan knew or should have" }, { "docid": "16109482", "title": "", "text": "of a faeially-valid loan agreement and deed of trust. We hold, therefore, that the deed of trust is enforceable against the Dyer bankruptcy estate. We do not reach the question whether the $97,782.33 payment of the First Interstate Mortgage was also a gift. Mr. Lindblade originally requested that the bankruptcy court find that he also had an equitable mortgage based on that payment. We do not understand Mr. Lind-blade to press the equitable mortgage argument before this court and therefore do not consider it. B. Damages/Sanctions Resulting from the Automatic Stay Violation Although Mr. Lindblade is entitled to enforce his unperfected deed of trust despite the automatic stay violation, the Trustee may nonetheless be entitled to sanctions. 1. Damages under § 362(h) Under § 362(h), an individual harmed by a willful automatic stay violation is entitled to collect compensatory damages (including attorneys’ fees) and, where appropriate, punitive damages. The parties all agree, however, that the Trustee is ineligible to receive damages under that private cause of action, because she is not an “individual.” Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir.1995). 2. Bankruptcy Court’s Contempt Authority Nonetheless, we have held that the Trustee may be entitled to recovery for violation of the automatic stay “under section 105(a) as a sanction for ordinary civil contempt.” Id. at 193; accord Calif. Employment Dev. Dep’t v. Taxel (In re Del Mission), 98 F.3d 1147, 1152 (9th Cir.1996). Although the availability of civil contempt sanctions under § 105(a) has a checkered past in our circuit, the recent precedent makes clear that this remedy is available. Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002); Walls v. Wells Fargo Bank, 276 F.3d 502, 507 (9th Cir.2002). Because the Trustee recovers under the contempt authority of § 105(a), rather than under § 362(h), however, the sanction award must conform to the legal standards governing that authority. Walls, 276 F.3d at 507. We have implied, in passing, that the contempt remedy is nearly identical to the remedy available to an individual under § 362(h), except for the permissive nature of" }, { "docid": "3156288", "title": "", "text": "hour in her employment as a nurse. The court will award her $408 for her lost wages. C The court also will award the debtors their reasonable attorneys’ fees and costs associated with the prosecution of this mo tion. In a separate written ruling appended to the minutes of the hearing conducted on November 29, 2010, the court determined that the debtors were entitled to recover $35,167.50 in attorney’s fees and $2,095.68 in costs. D The debtors, particularly Mr. Nordlund, maintain that BofA’s conduct inflicted on them serious emotional distress. They demand $85,000 in compensation for “emotional distress, and other costs.” See Docket No. 56, June 14, 2010 Reply at 13. BofA maintains that damages for emotional distress cannot be awarded for two reasons. First, to award such damages would violate the Ninth Circuit’s holding in Walls v. Wells Fargo Bank, 276 F.3d 502, 507 (9th Cir.2002). That is, because there is no private right action for a violation of the discharge injunction, the debtors can recover only the fees and costs associated with compelling the bank to obey the discharge injunction. They cannot claim other damages. Second, assuming such damages are recoverable, they cannot be recovered in this case because the bank’s conduct was not such that it would inflict emotional distress on a reasonable person. The court rejects both arguments. 1 Emotional distress damages do not violate Walls because such damages are compensatory in nature. Walls permits parties to recover compensatory damages for civil contempt. Walls at 507 (providing that civil contempt is the normal remedy for violation of the discharge injunction and that “compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorneys fees, and the offending creditor’s compliance with the discharge injunction”). Walls did not limit compensatory damages to attorney’s fees and costs. Such a limitation is inconsistent with Dyer’s interpretation of compensatory damages that are compensable under the court’s civil contempt power. Dyer at 1195. Citing Walls, the court in Dyer emphasized that “attorneys’ fees are an appropriate component of a civil contempt award.” Id. (emphasis added). In other words, besides attorney’s fees" }, { "docid": "21983102", "title": "", "text": "the bankruptcy court determines that the women’s discrimination claims came within their fair contemplation after the filing of the bankruptcy petition but before its April 30 confirmation order, the bankruptcy court shall permit those claims to be filed as timely administrative expenses. (Of course, if the discrimination claims are found to have accrued after April 30, 2002, the women may pursue those claims outside of the bankruptcy proceedings.) Sanctions Award Section 524 of the bankruptcy code provides that discharge “operates as an injunction against the 'commencement or continuation of an action ... to collect, recover or offset any [discharged] debt as a personal liability of the debtor.” 11 U.S.C. § 524(a)(2). A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. We cited with approval the standard adopted by the Eleventh Circuit for violation of the discharge injunction: “[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” Bennett, 298 F.3d at 1069 (citing Hardy v. United States (In re Hardy ), 97 F.3d 1384, 1390 (11th Cir.1996)). It is clear from our cases, and should have been clear to the bankruptcy court, that knowledge of the injunction is a question of fact that can normally be resolved only after an evidentiary hearing. The bankruptcy court, however, decided the contempt motion on a paper record. The court did so after expressing its views about the applicable law in its oral ruling, such as “contempt need not be willful to justify an award of damages,” and “[c]on-tempt may be established even if the failure to comply with the Court order was unintentional.” The bankruptcy court also" } ]

[ { "docid": "22533893", "title": "", "text": "knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has \"foreknowledge that his confederate will commit the offense with a firearm.\" Brief for United States 38; see also infra, at 1250 - 1252. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it-most notably, opt to walk away.9 Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a § 924(c) violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief 8-11. The jury, Rosemond concedes, could infer that state of mind from the defendant's advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion-that although the defendant participated in a drug deal knowing a gun would be involved, he did not specifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rosemond offers as an example an unarmed driver assisting in the heist of a store: If that person spent the drive \"trying to persuade [his confederate] to leave [the] gun behind,\" then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief" } ]

[ { "docid": "3541891", "title": "", "text": "commission of a crime is punishable as a principal. 18 U.S.C. § 2(a). To be convicted of aiding and abetting, the jury must find beyond a reasonable doubt that the defendant “knowingly and intentionally aided and abetted the principals in each essential element of the crime.” United States v. Dinkane, 17 F.3d 1192, 1196 (9th Cir.1994). Thus, in order to be convicted of aiding and abetting his accomplice’s § 924(c) violation, Banealari must have knowingly and intentionally aided and abetted the use or carrying of the firearm during and in relation to the crime of kidnapping. The instructions given by the trial court would have permitted the jury to convict Banealari simply if they found that he knew that a firearm was being used or carried during and in relation to the kidnapping; the jury was not required to find that Banealari intentionally aided and abetted the use or carrying of the firearm. Banealari argues that this was error. He argues that simply “knowing” that a firearm was being used in the underlying offense is insufficient to be convicted for aiding and abetting the use of the firearm because § 924(c) requires proof that he “directly facilitated or encouraged the use or carrying of a firearm.” United States v. Medina, 32 F.3d 40, 45 (2nd Cir.1994) (mere knowledge that a firearm is to be used in a robbery is insufficient to create aiding and abetting liability under § 924(c), even where the defendant performs some further act to facilitate or encourage the robbery). We agree with the Second Circuit’s formulation in Medina that to be guilty of aiding and abetting under § 924(c), the defendant must have “directly facilitated or encouraged the use” of the firearm and not simply be aware of its use. Id. Aiding and abetting is a specific intent crime. United States v. Andrews, 75 F.3d 552, 555 (9th Cir.1996). To sustain a conviction for aiding and abetting, -the evidence must show that the defendant “specifically intended to facilitate the commission of [the principal’s] crimes”; mere presence at the scene of the crime and knowledge that the" }, { "docid": "20618844", "title": "", "text": "crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.” Rosemond, 134 S.Ct. at 1245. For purposes of the intent inquiry, “a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.” Id. at 1249. Turning to the question of when an aider and abettor must know that a gun will be used, the Court clarified that the “defendant’s knowledge of a firearm must be advance knowledge,” i.e., “knowledge at a time the accomplice can do something with it — most notably, opt to walk away.” Id. at 1249-50. If the gun emerges only when the defendant no longer has a “realistic opportunity to quit the crime ..., the defendant has not shown the requisite intent to assist a crime involving a gun.” Id. at 1249. Yet the Supreme Court noted that, “if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge.” Id. at 1250 n.9. 3. Rosemond’s Application to Manso Manso contends that the Government “only succeeded in establishing that [he] knew something illegal was afoot inside his vehicle when officer Tejeda attempted to conduct a traffic stop.” To the contrary, the Government presented evidence that would have allowed the jury to infer that Manso knew that Casillas possessed a gun when Casillas first entered the Mazda. First, the firearm was over a foot long — so long that Tejeda needed to place it in the rear seat of his patrol car after he retrieved it. Casillas, who wore only a tee shirt and shorts, would have had difficulty concealing a gun of that size. Further, Casillas and Manso had been observed socializing that same day. The jury may have reasonably concluded that Manso was not merely giving an acquaintance a ride, but that he had spent time with Casillas throughout the evening and may have seen Casillas carrying the gun" }, { "docid": "969143", "title": "", "text": "found defendant guilty, and the district court sentenced him to 664 months’ incarceration. On appeal, defendant challenges the sufficiency of the evidence that he aided and abetted the discount store robbery and second bank robbery, alleges the district court erred in allowing him to self-represent and in sentencing him to consecutive sentences on his § 924(c) convictions, and argues that Hobbs Act robbery is not a crime of violence. II. a. Sufficiency of the Evidence We review the sufficiency of the evidence for a conviction “in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Circumstantial evidence alone may sustain a conviction. United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002). Aiding and abetting in the carrying of a firearm during commission of a crime of violence requires that the defendant “associate himself with the venture, that he participates in it as something he wishes to bring about, and that he seek by his action to. make it succeed.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1989)). The prosecution must show that defendant had advance knowledge that a firearm would be used in the course of the crime. Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). The intent requirement of aiding and abetting “preserves the distinction between assisting the predicate ... crime and assisting the broader § 924(c) offense.” Id. at 1248. i. Discount Store Robbery Defendant argues that he was merely present during Tripp’s armed robbery of the discount store and therefore not guilty as an aider and abettor. See United States v. Winston, 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim. Defendant admitted, and his co-defendants corroborated, that he helped plan- the robbery and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase of" }, { "docid": "19127676", "title": "", "text": "under a Pinkerton theory does not depend on a formal charge of conspiracy. United States v. Macey, 8 F.3d 462, 468 (7th Cir.1993). Agency is what supports mutual culpability. There’s another way to see this. Suppose Misleveck alone possessed the gun. In doing so he, being a felon, committed the felon-in-possession crime. Newman aided that offense by associating with Misleveck in a criminal venture and helping to advance its success. See, e.g., Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). A person who aids or abets the commission of a crime is liable as a principal. 18 U.S.C. § 2. And an indictment need not charge the § 2 offense separately. Aiding or abetting is a proper basis of conviction in every prosecution. See United States v. Moore, 936 F.2d 1508, 1525-28 (7th Cir.1991) (applying this principle to affirm a conviction under § 922(g)(1)). The Supreme Court concluded in Rose-mond that a person aids or abets a firearms crime when he participates in joint criminal activity, seeks to promote its objective, and knows that a confederate has a gun, in time to “do something with [that knowledge]' — most notably, opt to walk away.” 134 S.Ct. at 1249-50. Newman knew that Misleveck had and was wielding a gun, and he had plenty of time to walk away. Instead he maintained the cooperative venture. Under Rosemond, Newman is liable to the same extent as Misleveck. In both Rosemond and Rawlings a confederate pulled a gun unexpectedly, leaving other participants without an opportunity to drop out of the venture. Here, by contrast, Newman continued to cooperate with Misleveck long after learning that he had and was using a shotgun. Newman maintains that Pinkerton never supports criminal liability in a prosecution under § 922(g)(1). Some language in United States v. Walls, 225 F.3d 858 (7th Cir.2000), supports that position, but it is not what WaUs held. Rawlings describes Walls this way: “Pinkerton ascribes the crimes of co-conspirators to each other, not a conspirator’s acts that when combined with the acts of another conspirator might add up to" }, { "docid": "5575431", "title": "", "text": "a confidential informant to “try and find some people” willing to commit a home invasion, which the informant did by “going to the bars” in a “bad part of town” to try and “meet people”); see also United States v. Rodriguez, 603 Fed.Appx. 306 (5th Cir.2015); United States v. Sanchez, 138 F.3d 1410 (11th Cir.1998). Appellants’ arguments, whether considered alone or collectively, do not establish outrageous government conduct. We affirm the district court’s denial of Appellants’ motion to dismiss the indictment. IV. Appellants next challenge their convictions for possessing a firearm in furtherance of a drug trafficking, crime or a crime of violence, in violation of ,18 U.S.C. § 924(c) (Count 4). Appellants contend that the district court’s instructions on aiding and abetting liability were erroneous under Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). Appellants also contend that under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), a Hobbs Act robbery does not constitute a crime of violence and therefore éannot serve as the predicate crime for a conviction under § 924(c), or the related conspiracy charge in Count 3. These arguments are unavailing. A. In Rosemond, the Supreme Court held that to establish a violation of § 924(c) based on the theory that the defendant aided and abetted the offense, the government must prove “that the defendant actively participated in the underlying drug trafficking or. violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” 134 S.Ct. at 1243. This is because “[w]hen an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or ... withdraw from the enterprise.” Id. at 1249. However, “when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance ... [or] may at that late point have no realistic opportunity to quit the crime.” Id, In such case, “the defendant has not shown the requisite intent to assist a crime involving a" }, { "docid": "20618843", "title": "", "text": "out each “theory consistent with the defendant’s innocence ..., we must decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.” Id. (quoting United States v. Troy, 583 F.3d 20, 24 (1st Cir.2009)). The standard of review is rigorous, and defendants challenging the sufficiency of the evidence face “an uphill battle.” United States v. Seng Tan, 674 F.3d 103, 107 (1st Cir.2012). 2. Aiding and Abetting under Rose-mond Manso’s argument centers on the advance knowledge requirement articulated in Rosemond, which involved a defendant’s conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) during “a drug deal gone bad.” Rosemond, 134 S.Ct. at 1243. Section 924(c)(1)(A) provides minimum mandatory sentences for those “who, during and in relation to any crime of violence or drug trafficking crime ... use[ ] or carr[y] a firearm.” The Court in Rosemond began with the well-established premise that “a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.” Rosemond, 134 S.Ct. at 1245. For purposes of the intent inquiry, “a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.” Id. at 1249. Turning to the question of when an aider and abettor must know that a gun will be used, the Court clarified that the “defendant’s knowledge of a firearm must be advance knowledge,” i.e., “knowledge at a time the accomplice can do something with it — most notably, opt to walk away.” Id. at 1249-50. If the gun emerges only when the defendant no longer has a “realistic opportunity to quit the crime ..., the defendant has not shown the requisite intent to assist a crime involving a gun.” Id. at 1249. Yet the Supreme Court noted that, “if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury" }, { "docid": "13468428", "title": "", "text": "law: “[A] person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.” Id. at 1245. Regarding the affirmative act requirement, the Supreme Court concluded that the district court correctly instructed the jury that Rosemond could be convicted of aiding and abetting a § 924(c) offense even if he facilitated only the drug trafficking element, and not the use of the gun. Id. at 1247; see also id. at 1246 (“[A] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.” (internal quotation marks omitted)). Regarding the intent requirement, the Court stated that a person must intend to facilitate “the specific and entire crime charged.” Id. at 1248; see also id. (“[A]n aiding and abetting conviction requires ... a state of mind extending to the entire crime.” (emphasis added)). Therefore, with a § 924(c) offense, the aider and abettor must have knowledge of the full scope of the crime, that is, “that the plan calls not just for a drug sale, but for an armed one.” Id. at 1249; see also id. (stating that a defendant must intend to commit “the illegal scheme in its entirety — including its use of a firearm”). The Court farther held that this knowledge has to be “advance knowledge,” meaning “knowledge at a time the accomplice can do something with it — most notably, opt to walk away.” Id. at 1249-50. The jury instructions at Rosemond’s trial were in error because they did not require that Rosemond knew in advance that one of his cohorts would be armed. See id. at 1251. By instructing the jurors to consider merely whether Rosemond “knew his cohort used a firearm,” the district court failed to direct them to determine when Rosemond obtained the requisite knowledge — i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. Id. at 1251-52. C. Application of Rosemond" }, { "docid": "13468429", "title": "", "text": "abettor must have knowledge of the full scope of the crime, that is, “that the plan calls not just for a drug sale, but for an armed one.” Id. at 1249; see also id. (stating that a defendant must intend to commit “the illegal scheme in its entirety — including its use of a firearm”). The Court farther held that this knowledge has to be “advance knowledge,” meaning “knowledge at a time the accomplice can do something with it — most notably, opt to walk away.” Id. at 1249-50. The jury instructions at Rosemond’s trial were in error because they did not require that Rosemond knew in advance that one of his cohorts would be armed. See id. at 1251. By instructing the jurors to consider merely whether Rosemond “knew his cohort used a firearm,” the district court failed to direct them to determine when Rosemond obtained the requisite knowledge — i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. Id. at 1251-52. C. Application of Rosemond to Encar-nación The application of Rosemond to the charge in this case is relatively straightforward. The prosecution charged Encarna-ción with aiding and abetting Vilanova in the production of child pornography in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2. An individual violates § 2251(a) if he “employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any 'Visual depiction of such conduct ... using materials that have been mailed, shipped, and transported in or affecting interstate or foreign commerce.” (emphasis added). Under Rosemond, to establish the mens rea required to aid and abet a crime, the government must prove that the defendant participated with advance knowledge of the elements that constitute the charged offense. See 134 S.Ct. at 1248-49; see also id. (stating that an aider and abettor must have “full awareness of [the crime’s] scope,” “full knowledge of the circumstances constituting the charged offense,” and “participate[ ] in a criminal scheme knowing its extent and character”); United States v." }, { "docid": "16965022", "title": "", "text": "(1949). In other words, he who aids and abets another in committing a criminal offense is guilty of that offense just as if he had committed it himself. See Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014) (“ § 2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.”). “And an indictment need not charge the [aiding and abetting offense] separately.” Newman, 755 F.3d at 545, 2014 WL 2736091, at *2. The government argued at trial that Nicholas was guilty of Count IV because he aided and abetted its commission and the court instructed the jury on this theory of liability after trial. Culpability for the substantive offense of possessing and distributing narcotics attaches when the defendant affirmatively acts to further the offense with the intent of facilitating the commission of the offense. See Rosemond, 134 S.Ct. at 1245. Precedent sets a low bar for satisfying the “affirmative act” requirement, which is met when the defendant actively and knowingly participates in carrying out any part of the felonious conduct, irrespective of how minimal. Id. at 1245-46 (discussing history in detail and recognizing that “every little bit helps” if it aids crime as a whole). The defendant does not have to participate in every element of the offense. Id.; United States v. Woods, 148 F.3d 843, 850 (7th Cir.1998). Nicholas drove to Denny’s home, backed his truck into his driveway, and entered Denny’s home with Constantino and, according to the jury’s reasonable determination, a gun. These actions solidly satisfy the affirmative act requirement for aiding and abetting the drug offense. But this does not throw open the doors of liability as wide as one might imagine, for satisfying the affirmative act element is not enough on its own to support a conviction. Instead, the government must also show that the defendant acted with the intent to facilitate the crime. Rosemond, 134 S.Ct. at 1248-1250. Unlike the affirmative act prong of aiding and abetting liability," }, { "docid": "19347599", "title": "", "text": "Government and draw all reasonable inferences and credibility choices in the Government’s favor. United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir.2011). Davis argues that there is insufficient evidence to support his conviction on Count 17 of the superseding indictment, which charges aiding and abetting a code-fendant’s possession of a firearm during the jewelry store robbery. In his estimation, the evidence does not show that he had prior knowledge of any gun before the jewelry store robbery. In fact, he tells us, the evidence establishes that he was not involved in the planning of the robbery, precluding his prior knowledge of the firearm. At most, the jury intuited that Davis had prior knowledge of the gun, which is an insufficient basis on which to sustain his conviction. The Government argues that a reasonable construction of the evidence demonstrates that Davis knew his codefendant would be carrying a gun during the jewelry store robbery and that Davis enjoyed the protection of the firearm during the commission of the robbery. According to the Government, its evidence constitutes a showing sufficient to support a conviction for aiding and abetting a codefendant’s possession of a firearm. Recently, the Supreme Court decided Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), in which it clarified the standard regarding the precise question before us: What must the Government show when it seeks to establish that a defendant is guilty of aiding or abetting the offense of using or carrying a firearm during a crime of violence? In Rosemond, the Court held that the Government must prove that the defendant “actively participated in the underlying ... violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Rosemond, 134 S.Ct. at 1243. The Government, as part of its sufficiency argument, notes that Davis must have seen the gun during the robbery, and thus the knowledge element is met. We note that under Rosemond, such a scenario may constitute insufficient evidence if it means that Davis “at that late point ha[d] no realistic opportunity to" }, { "docid": "8107629", "title": "", "text": "knowledge was present “whenever the accomplice, having learned of the firearm, continues any act of assisting the [predicate crime of violence or drug trafficking crime].” Id. at 1250. To the contrary, “[i]n such a circumstance, a jury is entitled to find that the defendant intended only [the predicate crime] — that he never intended to facilitate, and so does not bear responsibility for, [that crime] carried out rvith a gun.” Id. at 1251 (emphasis added). Regarding the second half of the district court’s instruction — dealing with conduct facilitating the crime — the Court held that “active participation in [the predicate crime] is sufficient for § 924(c) liability (even if the conduct does not extend to the firearm).” Id. at 1251. Thus, actions furthering the use or carriage of the firearm are not required because a defendant’s “participation in the [predicate crime] satisfies the affirmative-act requirement for aiding and abetting a § 924(c) violation.” Id. at 1247. This forecloses Mr. Davis’s plain error argument that he must have “sought by his actions” to facilitate the entire “ § 924(c) offense.” See Aplt. Br. 57, 59-60, 60 n.3. After Rosemond, a jury instruction on aiding and abetting § 924(c) should address the defendant’s advance knowledge of the gun. The aider-and-abettor instruction in this case did not highlight this point in relation to the § 924(c) offense. But the general aider-and-abettor instruction did require Mr. Davis to consciously share Mr. Baker’s knowledge of the § 924(c) offense and that is enough on a plain error challenge. Mr. Davis confessed to advance knowledge of the robbery and seeing the gun as Mr. Baker re-entered the car after exiting the RadioShack. Under Rosemond, Mr. Davis was required to have knowledge of the gun before the robbery. We do not require jury instructions to be perfect. Zierke v. Agri-Sys., 992 F.2d 276, 278 (10th Cir.1993). Rather, instructions must merely be “adequate,” United States v. Gallant, 537 F.3d 1202, 1233 (10th Cir.2008), and, when reviewed for plain error, free of “clear or obvious” errors, Marcus, 560 U.S. at 262, 130 S.Ct. 2159. The error addressed in" }, { "docid": "10139315", "title": "", "text": "Id. at 673; see also United States v. Am, 564 F.3d 25, 33-34 (1st Cir. 2009) (holding that general intent as to a crime involving use of physical force meets the requirements for an ACCA.predicate offense). So too here: the defendant need not commit the aggravating conduct, but rather need only intend to engage in the conduct of the underlying robbery. Furthermore, Rosemond v. United States does not affect pur conclusion, as Stuckey suggests. — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). In that case, the defendant, Rosemond, was involved in a “drug deal gone bad” when either he or an accomplice shot at' a would-be drug buyer after the buyer stole drugs from Rosemond and his fellow drug sellers. Id. at 1243. The government charged Rosemond with aiding and abetting a violation of 18 U.S.C. § 924(c), which “provides that ‘any person who, during and in relation to any crime of violence or drug trafficking crime[,] ... uses or carries a firearm,’ shall receive a five-year mandatory-minimum sentence, with seven- and ten-year mínimums applicable, respectively, if the firearm is also brandished or discharged.” Id. (alterations in original) (quoting 18 U.S.C. § 924(c)). The district court provided jury instructions that stated Rosemond could be found guilty of aiding and abetting under 18 U.S.C. § 2 if he (1) participated in the crime, and (2) knew his cohort used a firearm during the crime. Id. at 1244. Rosemond contended that these instructions were insufficient, and the Supreme Court agreed, holding that a “defendant’s knowledge of a firearm must be advance knowledge” to result in aiding and abetting liability under 18 U.S.C. § 924(c). Id. at 1249. To reach this conclusion, the Court relied on the principle that “a person aids and abets a crime when ... he intends to facilitate that offense’s commission.” Id. at 1248. Thus, “for purposes of aiding and abetting law, a person who actively partici- ' pates in a criminal scheme knowing its extent and character intends that scheme’s commission,” a principle that, under Rose-mond, extends to the decision whether or not the commission of" }, { "docid": "969144", "title": "", "text": "it as something he wishes to bring about, and that he seek by his action to. make it succeed.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1989)). The prosecution must show that defendant had advance knowledge that a firearm would be used in the course of the crime. Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). The intent requirement of aiding and abetting “preserves the distinction between assisting the predicate ... crime and assisting the broader § 924(c) offense.” Id. at 1248. i. Discount Store Robbery Defendant argues that he was merely present during Tripp’s armed robbery of the discount store and therefore not guilty as an aider and abettor. See United States v. Winston, 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim. Defendant admitted, and his co-defendants corroborated, that he helped plan- the robbery and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase of an armed robbery constitutes intent to bring about the offense. See Phifer v. United States, 221 F.3d 1335, 2000 WL 924451, at *2 (6th Cir. 2000) (unpublished table decision) (affirming conviction for aiding and abetting armed robbery where defendant knew of principal’s intent to rob victim at gunpoint). The prosecution thus put forth sufficient evidence that defendant aided and abetted the armed robbery of the discount store. ii. Second Bank Robbery No testimony or other record evidence established — or rebutted — that defendant knew Williams possessed a firearm during the second bank robbery. The prosecution relies on defendant’s participation in the previous two armed robberies and knowledge that firearms figured in both crimes to argue that defendant had advance knowledge Williams would use a firearm in the last bank robbery. We have reversed § 924(c) convictions where jury instructions were insufficiently clear as to the defendant’s intent to aid an armed offense. United States v. Henry, 797 F.3d 371, 374-77 (6th Cir. 2015) (applying plain error review to unpreserved jury instruction issue). Henry established" }, { "docid": "19402627", "title": "", "text": "confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has \"foreknowledge that his confederate will commit the offense with a firearm.\" Brief for United States 38; see also infra, at 1250 - 1252. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it-most notably, opt to walk away. Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a § 924(c) violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief 8-11. The jury, Rosemond concedes, could infer that state of mind from the defendant's advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion-that although the defendant participated in a drug deal knowing a gun would be involved, he did not specifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rosemond offers as an example an unarmed driver assisting in the heist of a store: If that person spent the drive \"trying to persuade [his confederate] to leave [the] gun behind,\" then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief 9. We think not." }, { "docid": "13468426", "title": "", "text": "review because government did not argue for it); but see United States v. Bain, 586 F.3d 634, 639 n. 4 (8th Cir.2009) (stating that “a party’s concession on the standard of review does not bind the court”). Therefore, even if Encarnación did not sufficiently raise his appellate argument in the district court, we will review de novo the question of law posed by this case. See United States v. Carter, 752 F.3d 8, 13 (1st Cir.2014); see also United States v. Duquette, 778 F.3d 314, 317 (1st Cir.2015) (applying de novo review where “the government appears to have conceded that de novo reviews applies”). B. The Supreme Court’s Rosemond Decision Rosemond involved a “drug deal gone bad,” after either the defendant (Rose-mond) or his confederate (it was unclear who) fired a gun at the buyers, who had taken the drugs and run away without paying. 134 S.Ct. at 1243. Rosemond was charged with violating 18 U.S.C. § 924(c) by using a firearm in connection with a drug trafficking offense, or, in the alternative, aiding and abetting that crime under 18 U.S.C. § 2. Id. At trial, Rosemond contended that he “took no action with respect to any firearm.” Id. at 1246. More specifically, he did not buy, borrow, carry, or use a gun in connection with the alleged drug transaction. Id. Building on this factual premise, he argued that he could be found guilty of aiding or abetting a § 924(c) violation only if he “intentionally took some action to facilitate or encourage the use of the firearm, as opposed to the predicate drug offense.” Id. at 1244 (internal quotation marks omitted). Disagreeing, the district court instructed the jury that Rosemond was guilty of aiding and abetting if “(1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2)[he] knowingly and actively participated in the drug trafficking crime.” Id. (internal quotation marks omitted). Rosemond was convicted by the jury, and the Tenth Circuit affirmed. Id. at 1244. The Supreme Court vacated Rosemond’s § 924(c) conviction. Id. at 1252. The Court first restated longstanding aiding and abetting" }, { "docid": "19347600", "title": "", "text": "constitutes a showing sufficient to support a conviction for aiding and abetting a codefendant’s possession of a firearm. Recently, the Supreme Court decided Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), in which it clarified the standard regarding the precise question before us: What must the Government show when it seeks to establish that a defendant is guilty of aiding or abetting the offense of using or carrying a firearm during a crime of violence? In Rosemond, the Court held that the Government must prove that the defendant “actively participated in the underlying ... violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Rosemond, 134 S.Ct. at 1243. The Government, as part of its sufficiency argument, notes that Davis must have seen the gun during the robbery, and thus the knowledge element is met. We note that under Rosemond, such a scenario may constitute insufficient evidence if it means that Davis “at that late point ha[d] no realistic opportunity to quit the crime.” Rosemond, 134 S.Ct. at 1249. However, Davis does not argue his inability to retreat, and regardless, this point is beyond the scope of our analysis. We need only decide whether Davis had the requisite “advance knowledge” described in Rose-mond. After Rosemond, and considering the evidence in the light most favorable to the Government, a reasonable construction of the evidence supports conviction on Count 17. The Government established that Davis drove from Miami-Dade County to the robbery site in Broward County with his codefendant, Fisher, who was the gunman. Both Davis and Fisher sat in the backseat, and the driver of the car turned and handed Fisher the handgun that would be used during the robbery. We agree with the Government and the district court that the jury could reasonably infer Davis’s knowledge of the gun, based on its evaluation of the evidence as tending to demonstrate that Davis saw the gun in the car. Likewise, the jury may have inferred knowledge based on its finding that Davis participated in prior robberies, or" }, { "docid": "19402626", "title": "", "text": "the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen (like the abettors in Pereira and Bozza or the driver in an armed robbery) to align himself with the illegal scheme in its entirety-including its use of a firearm. And he has determined (again like those other abettors) to do what he can to \"make [that scheme] succeed.\" Nye & Nissen, 336 U.S., at 619, 69 S.Ct. 766. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a § 924(c) offense-i.e., an armed drug sale. For all that to be true, though, the § 924(c) defendant's knowledge of a firearm must be advance knowledge-or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has \"foreknowledge that his confederate will commit the offense with a firearm.\" Brief for United States 38; see also infra, at 1250 - 1252. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it-most notably, opt to walk away. Both parties here find" }, { "docid": "22533870", "title": "", "text": "(b) The first question is whether Rosemond's conduct was sufficient to satisfy the affirmative act requirement of aiding and abetting. Section 924(c) has two elements: a drug deal or violent crime, and using or carrying a firearm in connection with that crime. The instructions permitted the jury to convict Rosemond of aiding and abetting even if he facilitated only the drug element, and not the gun element, of the § 924(c) offense. Those instructions were correct. The common law imposed aiding and abetting liability on a person who facilitated any element of a criminal offense, even if he did not facilitate all elements. That principle continues to govern § 2. See, e.g.,United States v. Johnson, 319 U.S. 503, 515, 63 S.Ct. 1233, 87 L.Ed. 1546. Pp. 1245 - 1249. (c) In addition to conduct extending to some part of the crime, aiding and abetting requires intent extending to the whole crime. The defendant must not just associate himself with the venture, but also participate in it as something that he wishes to bring about and seek by his actions to make it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919. That requirement is satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. See Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 98 L.Ed. 435. An active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun. This must be advance knowledge-meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away. Pp. 1248 - 1251. 2. The trial court's jury instructions were erroneous because they failed to require that Rosemond knew in advance that one of his cohorts would be armed. In telling the jury to consider merely whether Rosemond \"knew his cohort used a firearm,\" the court did not direct the jury to determine when Rosemond obtained the requisite knowledge- i.e., to decide" }, { "docid": "10761350", "title": "", "text": "500 or more grams of cocaine, supra Section E, there was sufficient evidence for a rational jury to find that Espinoza had the specific intent to distribute cocaine. Thus, there is sufficient evidence that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime. Respardo-Ramirez also challenges the sufficiency of the evidence for his conviction on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Unlike Espinoza, Respardo-Ramirez was not charged or convicted on Count 2. In his case, the predicate offense was the conspiracy to possess with intent to distribute cocaine. There was no evidence that Respardo-Ramirez owned, possessed, or used the firearms listed in the indictment. Santana, Espinoza, Ramirez, Gudino, and Bravo-Garcia brandished the firearm in Detroit, but Respardo-Ramirez was in Chicago at the time the others brandished their guns. Instead, the grand jury charged Respardo-Ramirez as an aider and abettor of the firearm brandishing. To find a defendant criminally liable as an aider and abettor under 18 U.S.C. §§ 2 and 924(c), the government must offer sufficient proof that the defendant “(1) [took] an affirmative act in furtherance of that [drug trafficking] offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United States, — U.S.-, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). Liability attaches even where the defendant aids “only one (or some) of a crime’s phases or elements.” Id. at 1247. Thus, Respardo-Ramirez’s conviction must stand if, viewing the evidence in the light most favorable to the government, there is evidence that he “fa-cilitat[ed] either the drug transaction or the firearm use (or of course both).” Id. There is one limitation: the government must also prove that the defendant knew in advance “that one of his confederates will carry a gun” to further the drug offense. Id. at 1249. Even though the government did not charge Respardo-Ramirez for possession of cocaine with intent to distribute it, the grand jury charged him for joining a conspiracy to distribute cocaine. Thus, we must affirm the firearm conviction" }, { "docid": "22533892", "title": "", "text": "of its scope-that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen (like the abettors in Pereira and Bozza or the driver in an armed robbery) to align himself with the illegal scheme in its entirety-including its use of a firearm. And he has determined (again like those other abettors) to do what he can to \"make [that scheme] succeed.\" Nye & Nissen, 336 U.S., at 619, 69 S.Ct. 766. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a § 924(c) offense- i.e., an armed drug sale. For all that to be true, though, the § 924(c) defendant's knowledge of a firearm must be advance knowledge-or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has \"foreknowledge that his confederate will commit the offense with a firearm.\" Brief for United States 38; see also infra, at 1250 - 1252. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it-most notably, opt to walk away.9" } ]

[ { "docid": "8203027", "title": "", "text": "from the agreement any binding constraints on how such variables are to be used to determine a finance level for each mobile home. The only reasonable conclusion is that the parties did not intend to require the finance company to use a particular' risk-evaluation program and spreadsheets throughout the duration of the agreement. Therefore, Vanderbilt’s intention to use its own program and spreadsheets does not render false its promise to honor the terms of the dealer agreements, and Cordry’s misrepresentation claims must fail. C. Breach of the Implied Covenant of Good Faith and Fair Dealing Cordry contends that Vanderbilt breached the implied covenant of good faith and fair dealing by exercising its discretion under ¶ 1.2 of the addendum to lend less than the full 60 or 65 percent. “Missouri law implies a covenant of good faith and fair dealing in every contract.” Farmers’ Elec. Coop., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266, 271 (Mo. banc 1998). A breach of the covenant of good faith and fair dealing occurs where one party “exercise[s] a judgment conferred by the express terms of the agreement in such a manner as to evade the spirit of the transaction or so as to deny [the other party] the expected benefit of the contract.” Missouri Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 46 (Mo.Ct.App.2002). “When a decision is left to the discretion of one party, the question is not whether the party made an erroneous decision but whether the decision was made in bad faith or was arbitrary or capricious so as to amount to an abuse of discretion.” Id. at 48. In other words, there is no breach if the party exercised its discretion based on good-faith business judgment. See id. at 48-49. In the instant case, Cordry presents no evidence that Vanderbilt was using anything other than its good-faith business judgment when it calculated a financing level for the used homes presented by Cordry. Indeed, Cordry’s complaint is that the business program used by Vanderbilt to evaluate financing levels is not as favorable to Cordry as the" } ]

[ { "docid": "5870883", "title": "", "text": "implies in every contract a covenant of good faith and fair dealing “pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (quoting M/A-COM Security Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir.1990)). This covenant “ ‘includes an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part.’ ” Kader v. Paper Software Inc., 111 F.3d 337, 342 (2d Cir.1997) (quoting Carvel Corp. v. Diversified Mgmt. Group, Inc., 930 F.2d 228, 230 (2d Cir.1991)). Generally, a claim for breach of an implied covenant of good faith and fair dealing does not provide a cause of action separate from a breach of contract claim. “[Pjarties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir.2002) (citing Fasolino Foods Co., Inc. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992)); see also L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 433 n. 17 (2d Cir.2011) (“[BJreach of [the duty of good faith and fair dealing] is merely a breach of the underlying contract.”) (internal citations and quotations omitted). So that a claim for breach of the covenant of good faith and fair dealing will be duplicative of a breach of contract claim where the claims are based on the same allegations or where the same conduct is the predicate for both claims. McGee v. State Farm Mut. Auto. Ins. Co., No. 09-CV-3579, 2011 WL 5409393, at *8 (E.D.N.Y. Nov. 8, 2011). However, a plaintiff “may bring two breach of contact claims, one based on breach of the express terms and the other based on breach of the implied duty, as long as they" }, { "docid": "4858608", "title": "", "text": "law. Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33, 39-40 (8th Cir.1975) (interpreting Missouri law). It is well settled that a claim of entitlement to a decree of specific performance is defeated if the injured party has an adequate remedy at law, and if an award of damages will put the party in the same situation as if the agreement were specifically enforced. See Asbury v. Crawford Elec. Cooperative, Inc., 51 S.W.3d 152, 158 (Mo.App.2001). Safeco argues that an adequate remedy at law does not exist because it would deprive Safeco of its contractual prejudgment relief. Safeco cites case law in support of the proposition that for a surety in this situation, “it is not simply an issue of monetary loss; rather, it is an issue of impairing a surety’s expectation and requiring it to suffer any loss, even if only temporary, associated with the performance of a primary obligor’s duty.” Travelers Cas. & Surety Co. v. Ockerlund, 2004 WL 1794915, *5 (N.D.Ill. Aug. 6, 2004). Several courts have found that the law favors protecting a surety’s right to collateralization by granting specific performance. These courts find that although damages might be available to the surety in the future, the surety would be deprived of its contractual right to be placed in funds to be used to pay claims and expenses incurred on the bonded projects. In such eases, as in this case, the surety bargained for a collateral security clause to protect it from the impending risks of liability once a claim had been made on the bond. See Far West Ins. Co., 2008 WL 859182 at *8 (citing cases); see also American Motorists Ins., 876 F.2d at 293 (concluding that the surety was entitled to collateral security after demand had been made on bond); Schwab, 739 F.2d at 433-34 (reversing district court and interpreting a similar collateral security provision as providing for collateral security after a demand has been made against the bond); Travelers Cas. & Sur. Co. v. Southwest Contracting, Inc., 2006 WL 276942 **2-3 (E.D.Mo. Feb. 2, 2006) (granting specific performance of collateral security" }, { "docid": "17082714", "title": "", "text": "or allowing Marteau to sell NHI, and that Bessemer conducted BOD meetings without the required quorum or notice to Transeo. (SAC ¶¶ 188-190.) Under New York law, “ ‘[i]mplicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance.’ ” Sheppard v. Manhattan Club Timeshare Ass’n, Inc., No. 11-CV-4362, 2012 WL 1890388, at *7 (S.D.N.Y. May 23, 2012) (quoting Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995)). As a preliminary matter, a claim alleging a breach of this covenant will not stand if it is duplicative of a breach of contract claim. See Fleisher v. Phoenix Life Ins. Co., 858 F.Supp.2d 290, 298-99 (S.D.N.Y.2012) (“New York law does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim, based upon the same facts, is also pled.”) (alteration and internal quotation marks omitted); 4Kids Entm’t, Inc. v. Upper Deck Co., 797 F.Supp.2d 236, 241 (S.D.N.Y.2011) (dismissing sua sponte plaintiffs good faith/ fair dealing claims because “New York does not recognize a separate claim for breach of an implied covenant of good faith where a contract exists. Either the contract’s terms were breached or they were not, and ‘good faith and fair dealing’ does not imply any obligation above and beyond the terms of the parties’ actual agreement.”). Thus, Plaintiffs may not bring a good faith and fair dealing claim regarding the exclusion of Marteau from BOD meetings as it is duplicative of Plaintiffs’ breach of contract claim. The covenant of good faith and fair dealing “embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Dalton, 87 N.Y.2d at 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (internal quotation marks omitted); see Toledo Fund, LLC v. HSBC Bank USA, Nat’l Ass’n, No. 11-CV-7686, 2012 WL 2850997, at *6 (S.D.N.Y. July 9, 2012) (“[T]he implied covenant of good faith and fair" }, { "docid": "5870884", "title": "", "text": "that duty is merely a breach of the underlying contract.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir.2002) (citing Fasolino Foods Co., Inc. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992)); see also L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 433 n. 17 (2d Cir.2011) (“[BJreach of [the duty of good faith and fair dealing] is merely a breach of the underlying contract.”) (internal citations and quotations omitted). So that a claim for breach of the covenant of good faith and fair dealing will be duplicative of a breach of contract claim where the claims are based on the same allegations or where the same conduct is the predicate for both claims. McGee v. State Farm Mut. Auto. Ins. Co., No. 09-CV-3579, 2011 WL 5409393, at *8 (E.D.N.Y. Nov. 8, 2011). However, a plaintiff “may bring two breach of contact claims, one based on breach of the express terms and the other based on breach of the implied duty, as long as they are supported by factually distinct allegations.” Hosp. Auth. of Rockdale County v. GS Capital Partners V Fund, L.P., No. 09-CV-8716, 2011 WL 182066, at *4 (S.D.N.Y. Jan. 20, 2011). The Plaintiff does not appear to dispute that its good faith and fair dealing claim based on the Defendant’s alleged use of its confidential information is duplicative of its third cause of action for breach of the confidentiality and non-disclosure provisions of the Agreements. Thus, to the extent that the Plaintiffs claim for breach of the implied duty of good faith and fair dealing is premised on the Defendant’s alleged use of the Plaintiffs confidential information to create the competing checkout program, that claim is dismissed. See Washington v. Kellwood Co., No. 05-CV-10034, 2009 WL 855652, at *6 n. 3 (S.D.N.Y. Mar. 24, 2009) (“[AJlthough misappropriation of confidential information may give rise to a breach of the duties of good faith and fair dealing, this cannot be the case where, as here, the misappropriation of confidential information is already barred by an express contractual term.”) (citing" }, { "docid": "14134589", "title": "", "text": "of terms actually negotiated and cannot block [the] use of terms that actually appear in the contract. United States v. Basin Elec. Power Coop., 248 F.3d 781, 796 (8th Cir.2001) (internal citations and quotations omitted). Accordingly, Stone Motor cannot establish an entitlement to a specific number of vehicles through arguments based on the duty of good faith. Having correctly determined that the general duty of good faith and fair dealing could not “trump” the agreement’s clear allocation of discretion to GM by creating a duty to deliver vehicles according to a stated quota, the district court ended its analysis and determined that summary judgment was appropriate. We . disagree. To create a genuine question of material fact regarding breach of the duty of good faith, Stone Motor was not required, as argued by GM, to establish an entitlement to receive a specific number of vehicles. Rather, Stone Motor merely needed to present evidence tending to demonstrate that GM exercised its discretion “so as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract.” Amecks, 937 S.W.2d at 243. As the moving party, GM bears the burden of demonstrating that there exist no questions of material fact. GM has failed to meet this burden. Rather than defending its exercise of discretion under the agreement and presenting evidence to explain the performance deficiencies identified in Virgil Stone’s affidavit, GM merely asserted that the grant of unilateral discretion was a shield against any claims for breach of good faith. Under Missouri law, “the implied duty of one party to a cooperate with the other party to a contract to enable performance and achievement of expected benefits is an enforceable right.” Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.Ct.App. 2000) (internal citations omitted). GM enjoyed broad discretion under the agreement. Consequently, Stone Motor was not entitled to receive everything that it desired. However, in light of the restrictions imposed by both Missouri contract law and the MVFPA, Stone Motor was entitled to have GM exercise its discretion in good faith." }, { "docid": "22986854", "title": "", "text": "good reason.” To support their interpretation, Ruiz and Fasteel offer extrinsic evidence of a conversation between Bill Edwards, a Chance Vice-President, and Ruiz,-where Edwards allegedly told Ruiz that the agreement would only be terminated for “a good reason,” and only after Fasteel received notice of any deficiency and had an opportunity to cure. Ruiz and Fasteel also argue that the “usage of the trade” demonstrates that termination cannot occur absent good cause. The district court found that Ruiz and Fasteel failed to provide evidence sufficient to create a genuine issue of material fact on their breach of contract claim. Under Missouri law, unless the contract is ambiguous, extrinsic evidence cannot be admitted to contradict, alter, or add to the terms of a contract. See, e.g., Stewart Title Guar. Co. v. WKC Restaurants Venture Co., 961 S.W.2d 874, 881 (Mo.Ct.App.1998). Further, usage of trade evidence cannot be admitted because it would violate Paragraph 25 of the Distributorship Agreement which states that “no course or prior dealings and no usage of trade shall be relevant to supplement or explain any terms used in this Agreement.” Accordingly, the district court properly found that the contract at issue here is unambiguous in allowing termination of the contract for “any reason.” See, e.g., Emerick v. Mut. Benefit Life Ins. Co., 756 S.W.2d 513, 522 (Mo.1988) (en banc) (holding that language “at any time” meant that party had no obligation to provide reasons). Summary judgment was appropriately granted. C. Breach of the Implied Duty of Good Faith and Fair Dealing Ruiz and Fasteel’s third non-patent claim charges Chance with breaching the Distributorship Agreement’s implied duty of good faith and fair dealing. This duty was breached, Ruiz and Fasteel allege, because: 1) Chance’s anti-Hispanic bias resulted in Fasteel’s termination; 2) Chance offered no reason for terminating Fasteel; and 3) after the termination, Chance dealt directly with Fasteel’s dealers. Missouri law implies a duty of good faith and fair dealing in every contract. See, e.g., Farmers’ Elec. Coop., Inc. v. Mo. Dep’t of Connections, 977 S.W.2d 266, 271 (Mo.1998) (en banc). To prevail on a breach of duty" }, { "docid": "16769988", "title": "", "text": "dealing. Under Missouri law, a claim for breach of the implied covenant of good faith and fair dealing is a contractual claim. Roger v. Hartford Life Ins. Co., 28 S.W.3d 405, 413 (Mo.Ct.App.2000). The good faith requirement imposed by law on every contract extends “to the manner in which a party employs discretion conferred by a contract.” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 914 (8th Cir.2007) (applying Missouri law). To establish a violation of the covenant of good faith and fair dealing, a plaintiff must show that the defendant exercised its discretion “in such a matter as to evade the spirit of the transaction or so as to deny [the claimant] the expected benefit of the contract.” Id.; see also Acetylene Gas Co. v. Oliver, 939 S.W.2d 404, 410 (Mo.Ct.App.1996). The law does not allow the implied covenant of good faith and fair dealing to be an everflowing cornucopia of wished-for legal duties; indeed, the covenant cannot give rise to new obligations not otherwise contained in a contract’s express terms. Glass v. Mancuso, 444 S.W.2d 467, 478 (Mo.1969). The implied covenant simply prohibits one party from “depriv[ing] the other party of its expected benefits under the contract.” Morton v. Hearst Corp., 779 S.W.2d 268, 273 (Mo.Ct.App.1989). Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir.1996) “That duty prevents one party to the contract from exercising a judgment conferred by the express terms of [the] agreement in such a manner as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract.” Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 467 (8th Cir.2002) (citing Amecks, Inc. v. Sw. Bell Tel. Co., 937 S.W.2d 240, 243 (Mo.Ct.App.1996)). “[T]he implied duty of one party to cooperate with the other party to a contract to enable performance and achievement of expected benefits is an enforceable right.’ ” Id. (quoting Roger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.Ct.App.2000)). Here, the Court believes that the Missouri Supreme Court would reject HFS’s argument that the" }, { "docid": "14134587", "title": "", "text": "written agreement which contained an unambiguous merger clause (at section 17.11 of the Standard Provisions Dealer Sales and Service Agreement). There is no dispute that section 6.1 of the agreement accords broad discretion to GM to allocate vehicles among its various dealers. Accordingly, the preliminary documents relied upon by Stone Motor are parol evidence that cannot be used to establish a quota system contrary to the clear and express allocation of discretion contained in the agreement. Clearly Canadian Beverage Corp. v. American Winery, Inc., 257 F.3d 880, 889 (8th Cir.2001) (applying Missouri law); see also Union Elec. Co. v. Consolidated Coal, Co., 188 F.3d 998, 1002 (8th Cir.1999) (applying Missouri law). However, this does not end our analysis. Missouri law implies a duty of good faith in every contract: ‘Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.’ That duty prevents one party to the contract from exercising a judgment conferred by the express terms of [the] agreement in such a manner as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract. Amecks, Inc. v. Southwestern Bell Tel. Co., 937 S.W.2d 240, 243 (Mo.Ct.App.1996) (quoting Wulfing v. Kansas City S. Indus., Inc., 842 S.W.2d 133, 157 (Mo.Ct.App.1992) and RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981)). The district court correctly held that the general, implied, duty of good faith was incapable of altering the express terms of the agreement which clearly vested discretion in this area solely with GM. “[T]he covenant cannot give rise to new obligations not otherwise contained in a contract’s express terms.” Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir.1996) (citing Glass v. Mancuso, 444 5.W.2d 467-68 (Mo.1969)). As this Court has previously held: ... the covenant acts merely as a gap filler to deal with circumstances not contemplated by the parties at the time of contracting. Since good faith is merely a way of effectuating the parties[’] intent in unforeseen circumstances, the implied covenant\" has nothing to do with the enforcement" }, { "docid": "16769989", "title": "", "text": "v. Mancuso, 444 S.W.2d 467, 478 (Mo.1969). The implied covenant simply prohibits one party from “depriv[ing] the other party of its expected benefits under the contract.” Morton v. Hearst Corp., 779 S.W.2d 268, 273 (Mo.Ct.App.1989). Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir.1996) “That duty prevents one party to the contract from exercising a judgment conferred by the express terms of [the] agreement in such a manner as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract.” Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 467 (8th Cir.2002) (citing Amecks, Inc. v. Sw. Bell Tel. Co., 937 S.W.2d 240, 243 (Mo.Ct.App.1996)). “[T]he implied duty of one party to cooperate with the other party to a contract to enable performance and achievement of expected benefits is an enforceable right.’ ” Id. (quoting Roger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.Ct.App.2000)). Here, the Court believes that the Missouri Supreme Court would reject HFS’s argument that the Hallbecks will be unable, as a matter of law, to prevail on a claim that HFS exercised its duties and discretion related to the HNAF, under Section 5.B of the RFA, in a manner “so as to deny [the Hallbecks] the expected benefit of the contract.” See id. at 467-68 (reversing grant of summary judgment because genuine issue of material fact existed as to whether franchisor exercised its discretion under franchise agreement with automobile dealership franchisee to provide vehicles to franchisee, so as to evade spirit of agreement or deny franchisee expected benefit of the agreement). Thus, the Court will deny HFS’s motion to dismiss Count I of the amended counterclaim with respect to the Hallbecks’ assertions regarding the nature of the advertising. However, HFS’s contractual duties do not encompass an obligation to keep the Valley Spring, Illinois, Hardee’s open or to advertise directly in the Ottawa Hardee’s market area. Accordingly, the Court agrees with HFS that HFS’s failure to do so cannot be the basis of a claim for damages against HFS, even under" }, { "docid": "19662294", "title": "", "text": "right to determine incurred loss. The contract specifies that Columbia would utilize a subdivision of Columbia, CNA HealthPro Claim Consultants (CNA), “[f]or the purposes of determining incurred losses.” (Exhibit 113). This amounts to a grant of discretion because, as the evidence indicates, the determination of incurred loss is not an exact science and requires actuaries to exercise a certain measure of actuarial judgment. Although one could debate the scope of Columbia’s discretion, we will assume that Columbia had broad discretion in determining incurred loss. Any latitude Columbia might have had under the contract, however, was constrained by the covenant of good faith and fair dealing that Missouri law finds implicit in every contract. Cf. Farmers’ Elec. Coop., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266, 271 (Mo.1998) (“Missouri law implies a covenant of good faith and fair dealing in every contract.”). This good faith requirement extends to the manner in which a party employs discretion conferred by a contract. Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 45 (Mo.Ct.App.2002). To establish a violation of the covenant of good faith and fair dealing, it is not enough for a plaintiff to show that a party invested with discretion made an erroneous decision. Id. at 48. Instead, the plaintiff must show that the party exercised its discretion “in such a manner as to evade the spirit of the transaction or so as to deny [the other party] the expected benefit of the contract.” Id. at 46. The covenant of good faith and fair dealing does not establish a “general reasonableness requirement.” Schell v. LifeMark Hospitals of Missouri, 92 S.W.3d 222, 230 (Mo.Ct.App.2002). Unreasonableness can serve only as “evidence of subjective intent to undermine fulfillment of the contract.” Id. at 231. To establish a submissible case of bad faith, then, BJC was required to do more than offer evidence that Columbia’s incurred loss determination was flawed or unreasonable. Instead, BJC had to present evidence that Columbia’s determination of incurred loss was directed toward evading the spirit of the contract or denying BJC the benefit of its bargain. In" }, { "docid": "17221689", "title": "", "text": "Ins. Co., 28 F.3d 763, 764 (8th Cir.1994). Thus, Arkansas’s choice-of-law principles govern what state’s substantive law applies. Arkansas courts will enforce a contractual choice-of-law clause, provided that the law selected is reasonably related to the contract at issue and does not violate a fundamental public policy of the forum state. Nursing Home Consultants, Inc. v. Quantum Health Servs., Inc., 926 F.Supp. 835, 841 (E.D.Ark.1996) (collecting cases), aff'd, 112 F.3d 513 (8th Cir.1997). Absent an effective choice-of-law provision, Arkansas courts generally apply the “most significant relationship” test to breach of contract claims. Fuller v. Hartford Life Ins. Co., 281 F.3d 704, 707 (8th Cir.2002); Scottsdale Ins. Co. v. Morrowland Valley Co., LLC, 2012 Ark. 247, 411 S.W.3d 184, 189 (2012). At least one court in this district has applied the most significant relationship test where there were conflicting choice-of-law provisions. See Coorstek, Inc. v. Elec. Melting Servs. Co., No. 4-.06CV1726JMM, 2008 WL 160620, at *3 (E.D.Ark. Jan. 15, 2008). The parties acknowledge that the documents attached to plaintiffs’ pleadings contain differing choice-of-law provisions. One example deposit agreement attached to plaintiffs’ first amended complaint states that the agreement is governed by Arkansas law (Dkt. No. 12-3). The deposit agreements that Mr. Hanjy and J & J signed state that Missouri law governs (Dkt. Nos. 121, 12-2). However, the parties agree at this stage of the litigation that the laws of Arkansas and Missouri are substantially the same with regard to plaintiffs’ common-law claims, and both parties cite both Arkansas and Missouri law in their briefing. At this stage of the litigation, the Court, like the parties, will analyze Arvest’s motion and plaintiffs’ claims under Arkansas and Missouri law. The Court acknowledges that, based on plaintiffs’ proposed class, it may become necessary in the future to apply a particular state’s law to a particular plaintiff or set of plaintiffs. Any arguments regarding specific plaintiffs or specific states may be raised at a later stage upon consideration of a motion for class certification or motion for summary judgment. B. Breach of Contract In addition to arguing preemption, Arvest moves to dismiss plaintiffs’ breach" }, { "docid": "14134590", "title": "", "text": "the other party the expected benefit of the contract.” Amecks, 937 S.W.2d at 243. As the moving party, GM bears the burden of demonstrating that there exist no questions of material fact. GM has failed to meet this burden. Rather than defending its exercise of discretion under the agreement and presenting evidence to explain the performance deficiencies identified in Virgil Stone’s affidavit, GM merely asserted that the grant of unilateral discretion was a shield against any claims for breach of good faith. Under Missouri law, “the implied duty of one party to a cooperate with the other party to a contract to enable performance and achievement of expected benefits is an enforceable right.” Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.Ct.App. 2000) (internal citations omitted). GM enjoyed broad discretion under the agreement. Consequently, Stone Motor was not entitled to receive everything that it desired. However, in light of the restrictions imposed by both Missouri contract law and the MVFPA, Stone Motor was entitled to have GM exercise its discretion in good faith. Stone Motor introduced evidence via affidavit which, if accepted as true and viewed in a light most favorable to Stone Motor, could support claims for breach of the duty of good faith. GM did not provide evidence to rebut Stone Motor’s assertions. Consequently, we find that GM has ’failed to prove an absence of genuine questions of material fact. Accordingly, the district court’s grant of summary judgment on Stone Motor’s claim for breach of the duty of good faith and fair dealing is reversed. Accordingly, the judgment of the district court is reversed. . Of course, one dollar generally is sufficient consideration and this Court, like the courts of Missouri, will not inquire as to the sufficiency of consideration actually exchanged. However, the issue at hand is not whether the consideration was sufficient, but rather whether the recited consideration or some other consideration was actually paid. . The Missouri legislature\" amended the MVFPA in 1997. See Mo. Legis. Serv. 516 (1997). The 1997 amendments, coincidentally, were signed into law on the same day as the" }, { "docid": "17221688", "title": "", "text": "regarding Ar-vest’s disclosures are based in part on express contractual terms and are but one factor in plaintiffs’ -claim for breach of the covenant of good faith and fair dealing. In view of this, and given that the Court is only assuming without deciding that , Ar-vest enjoys preemption under the FDIA to the same extent as national banks under the NBA, the Court declines to find at this time that plaintiffs’ allegations regarding Arvest’s disclosures are preempted. V. Plaintiffs’ Claims Beyond preemption, Arvest argues that the contracts at issue explicitly authorize Arvest to charge fees and debit card overdrafts, that federal and state law permit the alleged high-to-low posting, that plaintiffs cannot assert an affirmative claim for unconscionability, and that certain of plaintiffs’ factual allegations relating to each claim are insufficient. The Court will first address the issue of the proper substantive law to apply. A. Choice of Law In determining a choice-of-law issue in a diversity action, a federal court looks to the choice-of-law principles of the forum state. Simpson v. Liberty Mut. Ins. Co., 28 F.3d 763, 764 (8th Cir.1994). Thus, Arkansas’s choice-of-law principles govern what state’s substantive law applies. Arkansas courts will enforce a contractual choice-of-law clause, provided that the law selected is reasonably related to the contract at issue and does not violate a fundamental public policy of the forum state. Nursing Home Consultants, Inc. v. Quantum Health Servs., Inc., 926 F.Supp. 835, 841 (E.D.Ark.1996) (collecting cases), aff'd, 112 F.3d 513 (8th Cir.1997). Absent an effective choice-of-law provision, Arkansas courts generally apply the “most significant relationship” test to breach of contract claims. Fuller v. Hartford Life Ins. Co., 281 F.3d 704, 707 (8th Cir.2002); Scottsdale Ins. Co. v. Morrowland Valley Co., LLC, 2012 Ark. 247, 411 S.W.3d 184, 189 (2012). At least one court in this district has applied the most significant relationship test where there were conflicting choice-of-law provisions. See Coorstek, Inc. v. Elec. Melting Servs. Co., No. 4-.06CV1726JMM, 2008 WL 160620, at *3 (E.D.Ark. Jan. 15, 2008). The parties acknowledge that the documents attached to plaintiffs’ pleadings contain differing choice-of-law provisions. One example" }, { "docid": "17864362", "title": "", "text": "(second alteration in original)). Therefore, the Court finds that the Policy’s choice-of-law provision applies only to those of Plaintiffs’ causes of action that sound in contract, and not to those that sound in tort. But this conclusion does not resolve the issue. The Court must still identify which state’s law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort, and once that law has been so identified, what result follows. The first question is a particularly important one in the context of this case, as under Alaska law, “an insured’s action against its insurer for breach of the implied covenant of good faith and fair dealing sound[s] in tort,” Ennen v. Integon Indem. Corp., 268 P.3d 277, 281 (Alaska 2012) (citing State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1156-57 (Alaska 1989)), while “[u]nder New York law, parties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract,” Funk v. Allstate Ins. Co., No. 13-CV-5933, 2013 WL 6537031, at *4 (E.D.N.Y. Dec. 13, 2013) (citing Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir.2002)); see also Aeolus Down, Inc. v. Credit Suisse Int’l, No. 10-CV-8293, 2011 WL 5570062, at *4 (S.D.N.Y. Nov. 16, 2011) (“New York law does not recognize a cause of action for tortious breach of an insurance contract.” (citing N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763, 770 (1995)); Commerce & Indus. Ins. Co., 2008 WL 4178474, at *3 (“New York law views various bad faith claims against insurance carriers as contractual in nature.” (internal quotation marks omitted) (quoting New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 606 (2d Cir.2003)); In Re WorldCom, Inc. Sec. Litig., 456 F.Supp.2d 508, 519 (S.D.N.Y.2006) (“To the extent that [the plaintiff] is attempting to plead a breach of the duty of good faith and fair" }, { "docid": "17221694", "title": "", "text": "contract documents attached to plaintiffs’ first amended complaint, the Court cannot say that Arvest’s contracts with plaintiffs expressly authorized overdrafts and overdraft fees for debit card transactions. The Court denies Ar-vest’s motion to dismiss on this basis. The parties may revisit the issue of contract interpretation at a later stage of this proceeding. C. Breach Of The Covenant Of Good Faith And Fair Dealing Plaintiffs also allege in their complaint that Arvest breached the implied covenant of good faith and fair dealing. Under Arkansas and Missouri law, every contract contains an implied covenant of good faith and fair dealing. Yarborough v. DeVilbiss Air Power, Inc., 321 F.3d 728, 732 (8th Cir.2003) (Arkansas law); Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark.App. 66, 968 S.W.2d 72, 75 (1998) (quoting Restatement (Second) of Contracts § 205 (1981)); Swartz v. Mann, 160 S.W.3d 411, 414 (Mo.Ct.App.2005). “As is the case with the contract’s express terms, the implied covenant is part of the contract and creates contractual obligations that are actionable.” Yarborough, 321 F.3d at 732. “Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Restatement (Second) of Contracts § 205, cmt. a (1981); see Missouri Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 47 (Mo.Ct.App.2002) (quoting same). Arvest first moves to dismiss to the extent that plaintiffs seek to assert breach of the covenant of good faith and fair dealing as an independent cause of action. The Court rejects this basis for dismissal, as plaintiffs assert this claim as a general breach of contract claim, not as a separate cause of action. Arvest also argues for dismissal by repeating its contention that its contracts with plaintiffs and the putative class members expressly authorized Arvest to charge a fee for debit overdrafts. “As a general principle, there can be no breach of the implied promise or covenant of good faith and fair dealing where the contract expressly permits the actions being challenged, and the defendant acts in accordance with the express terms of" }, { "docid": "16769987", "title": "", "text": "arising out of the RFA, applies here. “When a state’s highest court has not decided an issue, it is up to [the federal district court sitting in diversity] to predict how the state’s highest court would resolve that issue.” Continental Cas. Co. v. Advance Terrazzo & Tile Co., 462 F.3d 1002, 1007 (8th Cir.2006). Decisions of intermediate state appellate courts are persuasive authority that the federal court should follow when they are the best evidence of what state law is. Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 534 (8th Cir.2006); United Fire & Cas. Ins. Co. v. Garvey, 328 F.3d 411, 413 (8th Cir.2003). The Court first concludes that the Hall-becks have failed to state a claim for violation of the express terms of the RFA. The Recitals section of the RFA does not impose any specific contractual obligations upon HFS, and the Hallbecks point to no other express contract provision that was allegedly violated by HFS. This leaves the Hallbecks’ claim for breach of the implied covenant of good faith and fair dealing. Under Missouri law, a claim for breach of the implied covenant of good faith and fair dealing is a contractual claim. Roger v. Hartford Life Ins. Co., 28 S.W.3d 405, 413 (Mo.Ct.App.2000). The good faith requirement imposed by law on every contract extends “to the manner in which a party employs discretion conferred by a contract.” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 914 (8th Cir.2007) (applying Missouri law). To establish a violation of the covenant of good faith and fair dealing, a plaintiff must show that the defendant exercised its discretion “in such a matter as to evade the spirit of the transaction or so as to deny [the claimant] the expected benefit of the contract.” Id.; see also Acetylene Gas Co. v. Oliver, 939 S.W.2d 404, 410 (Mo.Ct.App.1996). The law does not allow the implied covenant of good faith and fair dealing to be an everflowing cornucopia of wished-for legal duties; indeed, the covenant cannot give rise to new obligations not otherwise contained in a contract’s express terms. Glass" }, { "docid": "19662293", "title": "", "text": "the contract’s language does not plainly indicate a condition precedent. In fact, the language suggests that the incurred loss condition is a condition subsequent. Accordingly, we agree with BJC that the incurred loss condition is a condition subsequent. We also agree that defendants typically have the burden of proving the occurrence of conditions subsequent. Peabody Holding Co., Inc. v. Costain Group PLC, 813 F.Supp. 1402, 1416 (E.D.Mo.1993); see also Truck Ins. Exch. v. Hunt, 590 S.W.2d 425, 427 (Mo.Ct.App.1979) (noting that if an insurer seeks to avoid coverage because of the occurrence of a condition subsequent, the insurer has the burden of proof). When the contractual provision in question reposes discretion in the defendant, however, the plaintiff must show that this discretion was exercised in bad faith. See Brozo v. Oracle Corp., 324 F.3d 661, 667-68 (8th Cir.2003) (judgment as a matter of law was warranted where contract accorded discretion to the defendant and there was no allegation that the discretion was exercised in bad faith). In this case, the contract allocated to Columbia the right to determine incurred loss. The contract specifies that Columbia would utilize a subdivision of Columbia, CNA HealthPro Claim Consultants (CNA), “[f]or the purposes of determining incurred losses.” (Exhibit 113). This amounts to a grant of discretion because, as the evidence indicates, the determination of incurred loss is not an exact science and requires actuaries to exercise a certain measure of actuarial judgment. Although one could debate the scope of Columbia’s discretion, we will assume that Columbia had broad discretion in determining incurred loss. Any latitude Columbia might have had under the contract, however, was constrained by the covenant of good faith and fair dealing that Missouri law finds implicit in every contract. Cf. Farmers’ Elec. Coop., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266, 271 (Mo.1998) (“Missouri law implies a covenant of good faith and fair dealing in every contract.”). This good faith requirement extends to the manner in which a party employs discretion conferred by a contract. Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 45 (Mo.Ct.App.2002). To" }, { "docid": "14134588", "title": "", "text": "the spirit of the transaction or so as to deny the other party the expected benefit of the contract. Amecks, Inc. v. Southwestern Bell Tel. Co., 937 S.W.2d 240, 243 (Mo.Ct.App.1996) (quoting Wulfing v. Kansas City S. Indus., Inc., 842 S.W.2d 133, 157 (Mo.Ct.App.1992) and RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981)). The district court correctly held that the general, implied, duty of good faith was incapable of altering the express terms of the agreement which clearly vested discretion in this area solely with GM. “[T]he covenant cannot give rise to new obligations not otherwise contained in a contract’s express terms.” Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir.1996) (citing Glass v. Mancuso, 444 5.W.2d 467-68 (Mo.1969)). As this Court has previously held: ... the covenant acts merely as a gap filler to deal with circumstances not contemplated by the parties at the time of contracting. Since good faith is merely a way of effectuating the parties[’] intent in unforeseen circumstances, the implied covenant\" has nothing to do with the enforcement of terms actually negotiated and cannot block [the] use of terms that actually appear in the contract. United States v. Basin Elec. Power Coop., 248 F.3d 781, 796 (8th Cir.2001) (internal citations and quotations omitted). Accordingly, Stone Motor cannot establish an entitlement to a specific number of vehicles through arguments based on the duty of good faith. Having correctly determined that the general duty of good faith and fair dealing could not “trump” the agreement’s clear allocation of discretion to GM by creating a duty to deliver vehicles according to a stated quota, the district court ended its analysis and determined that summary judgment was appropriate. We . disagree. To create a genuine question of material fact regarding breach of the duty of good faith, Stone Motor was not required, as argued by GM, to establish an entitlement to receive a specific number of vehicles. Rather, Stone Motor merely needed to present evidence tending to demonstrate that GM exercised its discretion “so as to evade the spirit of the transaction or so as to deny" }, { "docid": "17221695", "title": "", "text": "faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Restatement (Second) of Contracts § 205, cmt. a (1981); see Missouri Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 47 (Mo.Ct.App.2002) (quoting same). Arvest first moves to dismiss to the extent that plaintiffs seek to assert breach of the covenant of good faith and fair dealing as an independent cause of action. The Court rejects this basis for dismissal, as plaintiffs assert this claim as a general breach of contract claim, not as a separate cause of action. Arvest also argues for dismissal by repeating its contention that its contracts with plaintiffs and the putative class members expressly authorized Arvest to charge a fee for debit overdrafts. “As a general principle, there can be no breach of the implied promise or covenant of good faith and fair dealing where the contract expressly permits the actions being challenged, and the defendant acts in accordance with the express terms of the contract.” 23 Williston on Contracts § 63:22 (4th ed.); see Al-Khaldiya Electronics & Elec. Equip. Co. v. Boeing Co., 571 F.3d 754, 758-59 (8th Cir.2009) (stating same under Missouri law); Gunn v. Farmers Ins. Exch., 2010 Ark. 434, 372 S.W.3d 346, 351 (2010) (“[A]n implied covenant should not be used to limit an expressly bargained-for term.”). As stated above, the Court cannot say at this time that the contract expressly authorizes debit card overdraft fees. Moreover, plaintiffs’ claim for breach of the covenant of good faith and fair dealing is not limited to the fact that Arvest charged overdraft fees; plaintiffs’ claim encompasses Arvest’s alleged bad faith practices with regard to the manner in which it processed debit card transactions and assessed overdraft fees on debit card transactions. See In re Checking Account Overdraft Litig., 694 F.Supp.2d at 1317 (stating, with regard to claim of breach of covenant of good faith, that any factual questions about how the banks op erate are matters to be developed through discovery); White, 563 F.Supp.2d at 1364 (declining" }, { "docid": "22986855", "title": "", "text": "or explain any terms used in this Agreement.” Accordingly, the district court properly found that the contract at issue here is unambiguous in allowing termination of the contract for “any reason.” See, e.g., Emerick v. Mut. Benefit Life Ins. Co., 756 S.W.2d 513, 522 (Mo.1988) (en banc) (holding that language “at any time” meant that party had no obligation to provide reasons). Summary judgment was appropriately granted. C. Breach of the Implied Duty of Good Faith and Fair Dealing Ruiz and Fasteel’s third non-patent claim charges Chance with breaching the Distributorship Agreement’s implied duty of good faith and fair dealing. This duty was breached, Ruiz and Fasteel allege, because: 1) Chance’s anti-Hispanic bias resulted in Fasteel’s termination; 2) Chance offered no reason for terminating Fasteel; and 3) after the termination, Chance dealt directly with Fasteel’s dealers. Missouri law implies a duty of good faith and fair dealing in every contract. See, e.g., Farmers’ Elec. Coop., Inc. v. Mo. Dep’t of Connections, 977 S.W.2d 266, 271 (Mo.1998) (en banc). To prevail on a breach of duty claim, the party must present “substantial evidence” that the other party “acted in bad faith or engaged in unfair dealing.” Acetylene Gas Co. v. Oliver, 939 S.W.2d 404, 410 (Mo.Ct.App. 1996). The district court properly found that Ruiz and Fasteel failed to present “substantial evidence” that Chance breached the implied duty of good faith and fair dealing. Ruiz and Fasteel presented no credible evidence that Chance’s termination was motivated by racial animus or that Chance failed to proffer a reason for terminating Fasteel. Further, Paragraph 12 of the Distributorship Agreement expressly provides that Chance is permitted to “sell, lease or transfer” its products to other purchasers “wheresoever the latter may be located.” Thus, the lack of existence of a genuine material fact supports the district court’s grant of summary judgment. D. Promissory and Equitable Estop-pel Ruiz and Fasteel’s fourth claim alleges that they sustained damages of over one million dollars in relying on Chance’s representations to their detriment. The district court properly found that Ruiz and Fasteel cannot rely on a theory of equitable estoppel" } ]

[ { "docid": "8327148", "title": "", "text": "an adhesive securing the folded end of the container body to the end portion. The claim requires that it be “secured to the inwardly folded end.” In other words, claim 11 is broader than claims 12 and 13 insofar as the last two require that the inwardly bent end portion should be adhesively connected to the closure. The adhesive feature of the two claims is not the element which lends patentability to them. Since we think claims 12 and 13 are allowable, we also conclude that claim 11 is allowable and will afford more adequate patent protection, since the adhesive feature might in some way be avoided by securing the end in some other manner. The Solicitor for the Patent Office has not suggested that the features of the references relied upon by the examiner are the same as those that have been combined into appellant’s structure. He states that the question “to be determined is whether it was invention to make the substitution with such physical changes as would be a normal way of making the substitute.” This, of course, is the proper way to approach the question. Does the prior art suggest doing what appellant has done ? Does it suggest the modification ? Is there anything in the prior art that would suggest to anyone skilled in the container art how he could modify the references and consolidate them and produce his article so as to solve the problem upon which he was working? This is one of the cases where, as was stated in Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, after one sees the improvement it is a “matter of wonder” how it so long “eluded the search of the discoverer.” A case in point with the law involved in the instant appeal, we think,, is In re Edwards, 29 C. C. P. A. (Patents) 771, 124 F. (2d) 203, 52: USPQ 91. Also see In re Quartz, 24 C. C. P. A. (Patents) 1180, 90 F. (2d) 255, 33 USPQ 504. It follows from the foregoing that the decision" } ]

[ { "docid": "14597211", "title": "", "text": "of using small liquid depths in a digestion and distillation vessel, was rejected by the examiner as “unpatentable over Nelson or Wagner in view of Brown, Pew (1,935,953) or Werner for reasons applied to claims 1-3.” In his final rejection, the examiner stated: “In summary, it is pointed out that Nelson and Wagner disclose cracking a heavy viscous oil to form a lighter viscous oil for lubricants. That no critical differences exist between applicant’s process and their processes such as temperatures, pressure and time except the method of heating the oil. And the method of heating is very old and very well known. No unexpected or unpredictable result has been achieved by merely replacing the method of Nelson or Wagner heating by that shown by the supporting art. It is therefore submitted that the final rejection is proper and should be sustained.” The Board of Appeals in its decision substantially agreed with the reasoning and conclusions of the examiner. It held, however, that the patent to Brown was not pertinent, and the patent to Werner, while pertinent, was cumulative. It further held that the patent to Péw et al., No. 1,825,-976, was cumulative with Penniman. Appellant does not deny that Nelson et al. and Wagner et al., the principal references, disclose a process of cracking a heavy viscous oil to obtain a lighter viscous oil for lubricants, or that indirect heating had been used in'the prior art in processes which involved the cracking of oil. Appellant contends, however, that none of the secondary references, in its entirety, discloses the heating method, or the equivalent thereof, described in appellant’s specification and called for in the combination defined by the claims on appeal. The fact that no single reference in its entirety discloses the heating method claimed by appellant is not a decisive factor in this case. Under the rule established by this court, it is entirely proper to consider a number of references to the prior art in connection with the allowance of patent claims. In such cases the question always is whether the prior art, including the subsidiary references, suggests" }, { "docid": "14597210", "title": "", "text": "subatmospheric either by a vacuum pump or by the use of steam introduced at 14. The oil may be heated in 4 at the cracking temperature of 700-725°F. for as long as 4 or 5 hours but generally 10-20 minutes is preferred.” As pointed out by the examiner, the applicant discloses three different methods of heating the oil. In one, the coils of the heating medium merely extend through the pool of oil. In another, baffles are arranged through at spaced points to restrict thermal circulation, and in the third, shallow heated pools are provided by having pans or plates over which the oil passes from pan to pan, each being heated by coils. “The reason for the shallow pools,” the examiner states, “is apparently to prevent a pressure head due to a deep pool of oil.” Claims 1, 2, and 3 were rejected by the examiner on the ground that they were “unpatentable over Nelson or Wagner in view of Brown, Penniman, Pew (1,935,953) or Werner.” Claim 4, which alone contains the further limitation of using small liquid depths in a digestion and distillation vessel, was rejected by the examiner as “unpatentable over Nelson or Wagner in view of Brown, Pew (1,935,953) or Werner for reasons applied to claims 1-3.” In his final rejection, the examiner stated: “In summary, it is pointed out that Nelson and Wagner disclose cracking a heavy viscous oil to form a lighter viscous oil for lubricants. That no critical differences exist between applicant’s process and their processes such as temperatures, pressure and time except the method of heating the oil. And the method of heating is very old and very well known. No unexpected or unpredictable result has been achieved by merely replacing the method of Nelson or Wagner heating by that shown by the supporting art. It is therefore submitted that the final rejection is proper and should be sustained.” The Board of Appeals in its decision substantially agreed with the reasoning and conclusions of the examiner. It held, however, that the patent to Brown was not pertinent, and the patent to Werner," }, { "docid": "14597213", "title": "", "text": "doing the thing that the applicant has done. In re Stover, 146 F.2d 299, 32 C.C.P.A., Patents, 823; In re Application of Merkle, 150 F.2d 445, 32 C.C.P.A., Patents, 1151. It may be true that the secondary references are not identical'in detail with the-disclosure' of appellant but in our opinion they suggest doing the thing that appellant has done. Penniman claims an apparatus, but the specification shows a method of heating and cracking oil that is suggestively similar to the operation of the arrangement defined by appellant. Penniman provides means for the thermal circulation of oil, the use of baffles, and the cracking of oil by heat exchange with a heating medium circulated -through the charge of oil in a vessel. . . If . the steam in’Penniman is not maintained at 'a regulated temperature and is not of the same “order” as the- temperature of the charge,-as. argued.by appellant, that feature of the process is disclosed in both the cited patents- to Pew et al. On this point the Solicitor for the Patent Office cor•r.ectly..states in his.brief— “The Pew et al. patent 1,925,953 also discloses supplying heat for the vaporization of an oil by indirect heat transfer from a heating medium (mercury) circulated through the-charge at a temperature of the same order as that of the charge * * *. The patentees state that it is possible ‘in our process to effect such vaporization without raising the temperature of the mercury vapor much above the temperature of vaporization of the oil, owing to the very small required temperature difference between the heating and the heated media that is possible where mercury vapor is the heating medium.’ ” Claim 4, which refers to the depth of the charge, is a feature also disclosed by Pew et al. and, as stated by the board, the claim is unpatentable for the reasons applied to claims 1 to 3. Appellant also contends that by comparison his process results in a significantly higher yield than the yield obtainable by the processes disclosed in Nelson et al. and Wagner et al., \"and that this circumstance" }, { "docid": "18916083", "title": "", "text": "pertinent, and the patent to Werner, while pertinent, was cumulative. It further held that the patent to Pew et al., No. 1,825,976, was cumulative with Penniman. Appellant does not deny.that Nelson et al. and Wagner et al., the principal references, disclose a process of cracking a heavy viscous oil to obtain a lighter viscous oil for lubricants, or that indirect heating-had been used in the prior art in processes which involved the cracking of oil. Appellant contends, however, that none of the secondary references, in its entirety, discloses the heating method, or the equivalent thereof, described in appellant’s specification and called for in the combination defined by the claims on appeal. The fact that no single reference in its entirety discloses the heating method claimed by appellant is not a decisive factor in this case. Under the rule established by this court, it is entirely proper to consider a number of references to the prior art in connection with the allowance of patent claims. In such cases the question always is whether the prior art, including the subsidiary references, suggests doing the thing that the applicant has done. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Merkle, 32 C. C. P. A. (Patents) 1151, 150 F. (2d) 445, 66 USPQ 165. It may be true that the secondary references are not identical in detail with the disclosure of appellant but in our opinion they suggest doing the thing that appellant has done. Penniman claims an apparatus, but the specification shows a method of heating and cracking oil that is suggestively similar to the operation of the arrangement defined by appellant. Penniman provides means for the thermal circulation of oil, the use of baffles, and the cracking of oil by heat exchange with a heating medium circulated through the charge of oil in a vessel. If the steam in Penniman is not maintained at a regulated temperature and is not of the same “order” as the temperature of the charge, as argued by appellant, that feature of the process is" }, { "docid": "17410772", "title": "", "text": "from two sources of supply alternately after the measuring operation. The disclosure of the reference patents, like the disclosure of appellants application, involves a multitude of structural elements in a complicated system of apparatus. The only question here presented is whether certain elements defined by the appealed claims set forth definite and distinct elements which patent ably distinguish them over the art relied upon by the tribunals of the Patent Office. In view of that fact, it -would serve no useful purpose to enumerate in detail all the features of the four respective references. The structural elements of the apparatus by which the processes of the reference patents are carried out differ in certain respects from the structural elements by which appellant carries out his iirocess. Such difference does not constitute patentable subject matter, how ever, if the cited -references suggest to any person skilled in the art to do, without the exercise of the inventive faculty, the thing that appellant has done. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186. In other words, a prior patent does not lose its validity as a reference by its failure to describe in detail a thing that is obvious to any person skilled in the art and which majr be accomplished without the exercise of the inventive faculty. Travis v. Baker et al., 30 C. C. P. A. (Patents) 1271, 137 F. (2d) 109, 58 USPQ 558; In re Beach, 33 C. C. P. A. (Patents) 815, 152 F. (2d) 981, 68 USPQ 196. The patent to Freegard meters the material independent of the web movement and has independent control of the quantity of the discharge. In the disclosure of the patent to Penlejf et ah, the feed of the material is proportional to the movement of the coated sheet. The patent to Walton shows the general arrangement of an apparatus quite similar in operation to that defined by the claims on appeal, and provides a-method whereby the quantity of material fed to the sheet is varied. The discharged material is first laid" }, { "docid": "18916085", "title": "", "text": "disclosed in both the cited patents to Pew et al. On this point the Solicitor for the Patent Office correctly states in his brief— The Pew et al. patent 1,925,953 also discloses supplying beat for the vaporization of an oil by indirect heat transfer from a heating medium (mercury) circulated through the charge at a temperature of the same order as' that of the charge * * *. The patentees state that it is possible “in our process to effect such vaporization without raising the temperature of the mercury vapor much above the temperature of vaporization of the oil, owing to the very small required temperature difference between the heating and the heated media that is possible where mercury vapor is the heating medium.” Claim 4, which refers to the depth of the charge, is a feature also disclosed by Pew et al. and, as stated by the board, the claim is un-patentable for the reasons applied to claims 1 to 3. Appellant also contends that by comparison his process results in a significantly higher yield than the yield obtainable by the processes disclosed in Nelson et al. and Wagner et al., 11 and that this circma-stance is made evident hy the specific operation described in detail in appellant's specification.” Based on his reasons of appeal, appellant argues that an important factual error was committed by the board “in holding that there is nothing in applicant’s specification indicating that applicant obtains higher yields than Neláon et al. or Wagner et al.” In its decision on appellant’s petition for reconsideration, the board stated that “Wagner’s output was 60-90%” of low viscosity oil. However, appellant explains in his brief that this yield of 90% prior to reduction corresponds to a yield of only 72% in the terms of the final product after reduction, and that this value of 72% should be compared with the 83.6% produced by appellant’s process. It was incumbent upon appellant to establish his position by a proper showing of unexpected superiority over the product of the art of record. In re Swenson et al., 30 C. C. P." }, { "docid": "17440821", "title": "", "text": "heated gas oil to flow countercurrent to the reaction mixture in the conversion zone or chamber wherein catalyst, gas, and baffling means are present during the cracking process. Appellant likewise provides in his specification that stocks to be cracked may be subjected to preliminary heating in a heater prior to their introduction into the vertically elongated cracking zone, as follows: In carrying out the process of my invention substantially all of the heating may-be directly applied to the oil in the cracking zone, as by external or internal indirect heat exchange. However, the heating load directly applied to the cracking zone may be reduced by preliminary heating of the gaseous product supplied to tlie lower end of tlie cracking zone and also by preheating tlie fresh charge of reflux condensate or both prior to their introduction into the cracking zone. * * * A careful analysis of tlie respective disclosures fails to convince tlie court that a patentable distinction over tlie cited reference resides in the fact that in the patent to Wilson the gas oil is preheated to cracking temperature and partially cracked before such oil is admitted to the reaction chamber or cracking zone. Appellant relies upon an alleged patentable distinction over the disclosure of the patent to Wilson in the alleged fact that the conversion chamber of the patent cannot be characterized as a zone “containing superposed baffling means adapted to distribute upwardly flowing-gaseous products and to impede the downward flow of suspended solids” since that portion of the conversion chamber which lies below the point of gas introduction as disclosed by the cited reference “does not contain any form of baffling means, much less baffling means of the particular type required to meet the recitations of rejected claim 4.” The rejected claim contains no particular limitation reciting apparatus other than “superposed baffling means’’ adapted to perform a desired result. Limitations not recited in a claim cannot, be relied upon to impart patentability to that claim. In re Saunders et al., 33 C. C. P. A. (Patents) 1001, 154 F. (2d) 693, 69 USPQ 341. Furthermore, a" }, { "docid": "18916082", "title": "", "text": "which alone contains the further limitation of using small liquid depths in a digestion and distillation vessel, was rejected by the examiner as “unpatentable over Nelson or Wagner in view of Brown, Pew (1,935,953) or Werner for reasons applied to claims 1-3.” In his final rejection, the examiner stated: In summary, it is pointed out that Nelson and Wagner disclose cracking a heavy viscous oil to form a lighter viscous oil for lubricants. That no critical differ- enees exist between applicant’s process and their processes such as temperatures, -pressure and time except the method of heating the oil. And the method of heating is very old and very well known. No unexpected or unpredictable result has been achieved by merely replacing tlie method of Nelson or Wagner heating by that shown by the supporting art. It is therefore submitted that-the final rejection is proper and should be sustained. The Board of Appeals in its decision substantially agreed with the reasoning and conclusions of the examiner. It held, however, that the patent to Brown was not pertinent, and the patent to Werner, while pertinent, was cumulative. It further held that the patent to Pew et al., No. 1,825,976, was cumulative with Penniman. Appellant does not deny.that Nelson et al. and Wagner et al., the principal references, disclose a process of cracking a heavy viscous oil to obtain a lighter viscous oil for lubricants, or that indirect heating-had been used in the prior art in processes which involved the cracking of oil. Appellant contends, however, that none of the secondary references, in its entirety, discloses the heating method, or the equivalent thereof, described in appellant’s specification and called for in the combination defined by the claims on appeal. The fact that no single reference in its entirety discloses the heating method claimed by appellant is not a decisive factor in this case. Under the rule established by this court, it is entirely proper to consider a number of references to the prior art in connection with the allowance of patent claims. In such cases the question always is whether the prior art," }, { "docid": "18916080", "title": "", "text": "et al., 1,825,976, October 6, 1931. Pew, Jr. et al., 1,935,953, November 21, 1933. Nelson et al., 1,990,664, February 12, 1935. Wagner et al., 2,155,745, April 25, 1939. The alleged invention was described as follows by the examiner with numerical references to the drawings which illustrate apparatus for carrying out the combined operation of appellant’s process: This process involves mild cracking of heavy viscous oils to make light viscous oil of the nature of neutral (lubricating) oil. A heavy viscous oil (noting Fig. 1) is heated in digestion zone 4 by indirect heat exchange with a heating medium such as gas oil or diphenyl which is circulated in a closed cycle from heater 7 to coils 5 located in the digestion zone and back to the heater. The heating medium is heated to about 725-750° F. if the heavy viscous oil is heated to the desired temperature of 700-725° The vapors are removed from 4 [digestion and 'distillation vessel] as fast as formed and fractionated in 15 [fractionating tower] into various fractions. The pressure in 4 is preferably maintained at subatmospheric either by a vacuum pump or by the use of steam introduced at 14. The oil may be heated in 4 at the cracking temperature of 700-725° F. for as long as 4 or 5 hours but generally 10-20 minutes is preferred. As pointed out by the examiner, the applicant discloses three different methods of heating the oil. In one, the coils of the heating medium merely extend through the pool of oil. In another, baffles are arranged through at spaced points to restrict thermal circulation, and in the third, shallow heated pools are provided by having pans or plates over which the oil passes from pan to pan, each being heated by coils. “The reason for the shallow pools,” the examiner states, “is apparently to prevent a pressure head due to a deep pool of oil.” Claims 1, 2, and 3 were rejected by the examiner on the ground that they were “unpatentable over Nelson or Wagner in view of Brown, Penniman, Pew (1,935,953) or Werner.” Claim 4," }, { "docid": "18661780", "title": "", "text": "purpose of draining a coupling nut. Appellant insists that the appealed claims are patentable for the reason that they define an invention embodying important changes in recited structural elements over the corresponding related portions, if any, of the disclosure of Meyer and Eoss. The import of his argument here is that neither of the cited references shows the structural arrangement defined in the appealed claims. This Court has held that it is entirely proper to consider several references in connection with the allowance of patent claims and that in considering more than one reference to the prior art, the question always is whether such art suggests doing the thing which the applicant has done. See In re Fridolph, 30 C. C. P. A. (Patents) 939, 134 F. (2d) 414, 57 USPQ 122. The art of record in the case at bar clearly suggests doing the thing that appellant has done and as pointed out in the concurring decisions of the Patent Office tribunals, the device described in the appealed claims merely represents the carrying forward of old ideas disclosed in the prior ar|; and no invention is therefore involved even though a new and useful result may be brought about. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186. In view of the conclusion reached it would serve no useful purpose to (liscuss in this opinion other arguments and citations presented by appellant and the decision of the Board of Appeals is accordingly affirmed." }, { "docid": "18916078", "title": "", "text": "O’Connell, Judge, delivered the opinion of the court: This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary-Examiner in rejecting claims 1, 2, 3, and 4 in appellant’s application for a patent directed to a method for “certain new and useful improvements in lubricating oils” particularly adapted for producing light viscous oils from heavy viscous oils. There were no claims allowed and appellant petitioned the board requesting a reconsideration of its decision. The petition was granted and the grounds of rejection were reconsidered, but the board declined to make any change in its original decision. Claims 1 and 4 are illustrative— 1. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged period in a digestion and distillation vessel, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge. 4. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged p'eiiod in a digestión 'and distillation' vessel, while restricting thermal circulation in said vessel and avoiding liquid depths within saicl charge great enough to have any substantial pressure effect upon parts of the charge furthest below the liquid surface, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge. The examiner cited the following references— Penniman, 1,459,515, June 19, 1923. Brown, 1,528,968, March 10, 1925. Werner, 1,669,182, May 8, 1928. Pew, Jr." }, { "docid": "14597214", "title": "", "text": "cor•r.ectly..states in his.brief— “The Pew et al. patent 1,925,953 also discloses supplying heat for the vaporization of an oil by indirect heat transfer from a heating medium (mercury) circulated through the-charge at a temperature of the same order as that of the charge * * *. The patentees state that it is possible ‘in our process to effect such vaporization without raising the temperature of the mercury vapor much above the temperature of vaporization of the oil, owing to the very small required temperature difference between the heating and the heated media that is possible where mercury vapor is the heating medium.’ ” Claim 4, which refers to the depth of the charge, is a feature also disclosed by Pew et al. and, as stated by the board, the claim is unpatentable for the reasons applied to claims 1 to 3. Appellant also contends that by comparison his process results in a significantly higher yield than the yield obtainable by the processes disclosed in Nelson et al. and Wagner et al., \"and that this circumstance is made evident by the specific operation described in detail in appellamt’s specificationBased on his reasons of appeal, appellant argues that an important factual error was committed by the board “in holding that there is nothing in applicant’s specification indicating that applicant obtains higher yields than Nelson et al. or Wagner et al.” In its decision on appellant’s petition for reconsideration, the board stated that “Wagner’s output was 60-90%” of low viscosity oil. However, appellant explains in his brief that this yield of 90% prior to reduction corresponds to a yield of only 72% in the terms of the final product after reduction, and that this value of 72% should be compared with the 83.6% pror duced by appellant’s process. It was incumbent upon appellant to establish his position by a proper showing of unexpected superiority over the product of the art of record. In re Swenson et al., 30 C.C.P.A. (Patents) 809, 132 F.2d 1020. It is our opinion that the facts presented here do not constitute such a clear showing of superiority as" }, { "docid": "14597208", "title": "", "text": "indirect heat transfer from a heating medium circulated through said charge in saiZ vessel at a temperature of the same order as that of the charge. “4. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged period in a digestion and distillation vessel, while restricting thermal circulation in said vessel and avoiding liquid depths within said charge great enough to have any substantial pressure effect upon parts of the charge furthest below the liquid surface, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge.” The examiner cited the following references: Penniman, 1,459,515, June 19, 1923; Brown, 1,528,968, Mar. 10, 1925; Werner, 1,669,182, May 8, 1928; Pew, Jr. et al., 1,825,976, Oct. 6, 1931; Pew, Jr. et al., 1,935,953, Nov. 21, 1933; Nelson et al., 1,990,664, Feb. 12, 1935; Wagner et al., 2,155,745, Apr. 25, 1939. The alleged invention was described as follows by the examiner with numerical references to the drawings which illustrate apparatus for carrying out the combined operation of appellant’s process: “This process involves mild cracking of heavy viscous oils to make light viscous oil of the nature of neutral (lubricating) oil. “A heavy viscous oil (noting Fig. 1) is heated in digestion zone 4 by indirect heat exchange with a heating medium such as gas oil or diphenyl which is circulated in a closed cycle from heater 7 to coils 5 located in the digestion zone and back to the heater. The heating medium is heated to about 725-750°F. if the heavy viscous oil is heated to the desired temperature of 700-725°F. The vapors are removed from 4 [digestion and distillation vessel] as fast as formed and fractionated in 15 [fractionating tower] into various fractions. The pressure in 4 is preferably maintained at" }, { "docid": "18112185", "title": "", "text": "upon which it may render a decision one way or another as to the correctness of the involved statement. Under those circumstances, the statement must be accepted by the court as correct. In re Lewis, 25 C. C. P. A. (Patents) 1273, 96 F. (2d) 1009, 37 USPQ 786; In re Selmi et al., supra. The court upon a careful comparison of the involved disclosures is obliged to concur in the view expressed by the tribunals of the Patent Office to the effect that the only distinction over the cited references defined by the appealed claims is the vertical curvature of the sample holders with the light source as the center of curvature. The horizontal curvature of the sample holders disclosed by the British patent while not explicitly described in .the specification is clearly depicted and suggested by the accompanying drawings, and upon the facts presented no invention was involved in curving the sample holders vertically as appellant has done instead of horizontally as was previously done by Lorilleux et al. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186. Moreover, as stated by the Board of Appeals, appellant in defining his alleged invention has but resorted to the application of a well known principle of science generally used in the arts to produce an obvious result. Appellant contends that his method claims are not anticipated by the apparatus disclosed by the references because alterations are required to adapt the mechanism thereof to carry out the method defined by the rejected claims. It clearly appears, however, that the alterations required to adapt the disclosure of such references to carry out appellant’s method are of a character such as.would have occurred to any person skilled in the art. Moreover, the elements of the patented apparatus here disclosed in their normal and usual operations, so far as the record is concerned, will perform the function that is defined by appellant’s claims. Therefore no invention was involved in doing the thing that was done by the method defined by them. In re Earl Aekenbach, 18" }, { "docid": "14597207", "title": "", "text": "O’CONNELL, Associate Judge. This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary Examiner in rejecting claims 1, 2, 3, and 4 in appellant’s application for a patent directed to a method for “certain new and useful improvements in lubricating oils” particularly adapted for producing light viscous oils from heavy viscous oils. There were no claims allowed and appellant petitioned the board requesting a reconsideration of its decision. The petition was granted and the grounds of rejection were reconsidered, but the board declined to make any change in its original decision. Claims 1 and 4 are illustrative “1. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged period in a digestion and distillation vessel, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying, the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in saiZ vessel at a temperature of the same order as that of the charge. “4. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged period in a digestion and distillation vessel, while restricting thermal circulation in said vessel and avoiding liquid depths within said charge great enough to have any substantial pressure effect upon parts of the charge furthest below the liquid surface, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge.” The examiner cited the following references: Penniman, 1,459,515, June 19, 1923; Brown, 1,528,968, Mar. 10, 1925; Werner, 1,669,182, May 8, 1928; Pew, Jr. et al., 1,825,976, Oct." }, { "docid": "18916081", "title": "", "text": "4 is preferably maintained at subatmospheric either by a vacuum pump or by the use of steam introduced at 14. The oil may be heated in 4 at the cracking temperature of 700-725° F. for as long as 4 or 5 hours but generally 10-20 minutes is preferred. As pointed out by the examiner, the applicant discloses three different methods of heating the oil. In one, the coils of the heating medium merely extend through the pool of oil. In another, baffles are arranged through at spaced points to restrict thermal circulation, and in the third, shallow heated pools are provided by having pans or plates over which the oil passes from pan to pan, each being heated by coils. “The reason for the shallow pools,” the examiner states, “is apparently to prevent a pressure head due to a deep pool of oil.” Claims 1, 2, and 3 were rejected by the examiner on the ground that they were “unpatentable over Nelson or Wagner in view of Brown, Penniman, Pew (1,935,953) or Werner.” Claim 4, which alone contains the further limitation of using small liquid depths in a digestion and distillation vessel, was rejected by the examiner as “unpatentable over Nelson or Wagner in view of Brown, Pew (1,935,953) or Werner for reasons applied to claims 1-3.” In his final rejection, the examiner stated: In summary, it is pointed out that Nelson and Wagner disclose cracking a heavy viscous oil to form a lighter viscous oil for lubricants. That no critical differ- enees exist between applicant’s process and their processes such as temperatures, -pressure and time except the method of heating the oil. And the method of heating is very old and very well known. No unexpected or unpredictable result has been achieved by merely replacing tlie method of Nelson or Wagner heating by that shown by the supporting art. It is therefore submitted that-the final rejection is proper and should be sustained. The Board of Appeals in its decision substantially agreed with the reasoning and conclusions of the examiner. It held, however, that the patent to Brown was not" }, { "docid": "18916079", "title": "", "text": "decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge. 4. In the production of light viscous oils from heavy viscous oils, the improvement which comprises subjecting a liquid charge of the heavy stock to mild cracking for a prolonged p'eiiod in a digestión 'and distillation' vessel, while restricting thermal circulation in said vessel and avoiding liquid depths within saicl charge great enough to have any substantial pressure effect upon parts of the charge furthest below the liquid surface, vaporizing the light stock from said charge as fast as formed and withdrawing the vapors from said vessel, and supplying the heat for decomposition and vaporization by indirect heat transfer from a heating medium circulated through said charge in said vessel at a temperature of the same order as that of the charge. The examiner cited the following references— Penniman, 1,459,515, June 19, 1923. Brown, 1,528,968, March 10, 1925. Werner, 1,669,182, May 8, 1928. Pew, Jr. et al., 1,825,976, October 6, 1931. Pew, Jr. et al., 1,935,953, November 21, 1933. Nelson et al., 1,990,664, February 12, 1935. Wagner et al., 2,155,745, April 25, 1939. The alleged invention was described as follows by the examiner with numerical references to the drawings which illustrate apparatus for carrying out the combined operation of appellant’s process: This process involves mild cracking of heavy viscous oils to make light viscous oil of the nature of neutral (lubricating) oil. A heavy viscous oil (noting Fig. 1) is heated in digestion zone 4 by indirect heat exchange with a heating medium such as gas oil or diphenyl which is circulated in a closed cycle from heater 7 to coils 5 located in the digestion zone and back to the heater. The heating medium is heated to about 725-750° F. if the heavy viscous oil is heated to the desired temperature of 700-725° The vapors are removed from 4 [digestion and 'distillation vessel] as fast as formed and fractionated in 15 [fractionating tower] into various fractions. The pressure in" }, { "docid": "14597212", "title": "", "text": "while pertinent, was cumulative. It further held that the patent to Péw et al., No. 1,825,-976, was cumulative with Penniman. Appellant does not deny that Nelson et al. and Wagner et al., the principal references, disclose a process of cracking a heavy viscous oil to obtain a lighter viscous oil for lubricants, or that indirect heating had been used in'the prior art in processes which involved the cracking of oil. Appellant contends, however, that none of the secondary references, in its entirety, discloses the heating method, or the equivalent thereof, described in appellant’s specification and called for in the combination defined by the claims on appeal. The fact that no single reference in its entirety discloses the heating method claimed by appellant is not a decisive factor in this case. Under the rule established by this court, it is entirely proper to consider a number of references to the prior art in connection with the allowance of patent claims. In such cases the question always is whether the prior art, including the subsidiary references, suggests doing the thing that the applicant has done. In re Stover, 146 F.2d 299, 32 C.C.P.A., Patents, 823; In re Application of Merkle, 150 F.2d 445, 32 C.C.P.A., Patents, 1151. It may be true that the secondary references are not identical'in detail with the-disclosure' of appellant but in our opinion they suggest doing the thing that appellant has done. Penniman claims an apparatus, but the specification shows a method of heating and cracking oil that is suggestively similar to the operation of the arrangement defined by appellant. Penniman provides means for the thermal circulation of oil, the use of baffles, and the cracking of oil by heat exchange with a heating medium circulated -through the charge of oil in a vessel. . . If . the steam in’Penniman is not maintained at 'a regulated temperature and is not of the same “order” as the- temperature of the charge,-as. argued.by appellant, that feature of the process is disclosed in both the cited patents- to Pew et al. On this point the Solicitor for the Patent Office" }, { "docid": "14597209", "title": "", "text": "6, 1931; Pew, Jr. et al., 1,935,953, Nov. 21, 1933; Nelson et al., 1,990,664, Feb. 12, 1935; Wagner et al., 2,155,745, Apr. 25, 1939. The alleged invention was described as follows by the examiner with numerical references to the drawings which illustrate apparatus for carrying out the combined operation of appellant’s process: “This process involves mild cracking of heavy viscous oils to make light viscous oil of the nature of neutral (lubricating) oil. “A heavy viscous oil (noting Fig. 1) is heated in digestion zone 4 by indirect heat exchange with a heating medium such as gas oil or diphenyl which is circulated in a closed cycle from heater 7 to coils 5 located in the digestion zone and back to the heater. The heating medium is heated to about 725-750°F. if the heavy viscous oil is heated to the desired temperature of 700-725°F. The vapors are removed from 4 [digestion and distillation vessel] as fast as formed and fractionated in 15 [fractionating tower] into various fractions. The pressure in 4 is preferably maintained at subatmospheric either by a vacuum pump or by the use of steam introduced at 14. The oil may be heated in 4 at the cracking temperature of 700-725°F. for as long as 4 or 5 hours but generally 10-20 minutes is preferred.” As pointed out by the examiner, the applicant discloses three different methods of heating the oil. In one, the coils of the heating medium merely extend through the pool of oil. In another, baffles are arranged through at spaced points to restrict thermal circulation, and in the third, shallow heated pools are provided by having pans or plates over which the oil passes from pan to pan, each being heated by coils. “The reason for the shallow pools,” the examiner states, “is apparently to prevent a pressure head due to a deep pool of oil.” Claims 1, 2, and 3 were rejected by the examiner on the ground that they were “unpatentable over Nelson or Wagner in view of Brown, Penniman, Pew (1,935,953) or Werner.” Claim 4, which alone contains the further limitation" }, { "docid": "18916084", "title": "", "text": "including the subsidiary references, suggests doing the thing that the applicant has done. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Merkle, 32 C. C. P. A. (Patents) 1151, 150 F. (2d) 445, 66 USPQ 165. It may be true that the secondary references are not identical in detail with the disclosure of appellant but in our opinion they suggest doing the thing that appellant has done. Penniman claims an apparatus, but the specification shows a method of heating and cracking oil that is suggestively similar to the operation of the arrangement defined by appellant. Penniman provides means for the thermal circulation of oil, the use of baffles, and the cracking of oil by heat exchange with a heating medium circulated through the charge of oil in a vessel. If the steam in Penniman is not maintained at a regulated temperature and is not of the same “order” as the temperature of the charge, as argued by appellant, that feature of the process is disclosed in both the cited patents to Pew et al. On this point the Solicitor for the Patent Office correctly states in his brief— The Pew et al. patent 1,925,953 also discloses supplying beat for the vaporization of an oil by indirect heat transfer from a heating medium (mercury) circulated through the charge at a temperature of the same order as' that of the charge * * *. The patentees state that it is possible “in our process to effect such vaporization without raising the temperature of the mercury vapor much above the temperature of vaporization of the oil, owing to the very small required temperature difference between the heating and the heated media that is possible where mercury vapor is the heating medium.” Claim 4, which refers to the depth of the charge, is a feature also disclosed by Pew et al. and, as stated by the board, the claim is un-patentable for the reasons applied to claims 1 to 3. Appellant also contends that by comparison his process results in a significantly higher" } ]

[ { "docid": "22742527", "title": "", "text": "United States v. United States Fidelity & Guaranty Co., supra, at 512. It is settled that a waiver of sovereign immunity “ 'cannot be implied but must be unequivocally expressed.’ ” United States v. Testan, 424 U. S. 392, 399 (1976), quoting, United States v. King, 395 U. S. 1, 4 (1969). Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in a habeas corpus action is the individual custodian of the prisoner, see, e. g., 28 U. S. C. § 2243, the provisions of § 1303 can hardly be read as a general waiver of the tribe’s sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit. IV As an officer of the Pueblo, petitioner Lucario Padilla is not protected by the tribe’s immunity from suit. See Puyallup Tribe v. Washington Dept. of Game, supra, at 171-172; cf. Ex parte Young, 209 U. S. 123 (1908). We must therefore determine whether the cause of action for declaratory and injunctive relief asserted here by respondents, though not expressly authorized by the statute, is nonetheless implicit in its terms. In addressing this inquiry, we must bear in mind that providing a federal forum for issues arising under § 1302 constitutes an interference with tribal autonomy and self-government beyond that created by the change in substantive law itself. Even in matters involving commercial and domestic relations, we have recognized that “subjecting] a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves,” Fisher v. District Court, 424 U. S. 382, 387-388 (1976), may “undermine the authority of the tribal cour[t] . . . and hence . . . infringe on the right of the Indians to govern themselves.” Williams v. Lee, 358 U. S., at 223. A fortiori, resolution in a foreign forum of intratribal disputes" } ]

[ { "docid": "3796133", "title": "", "text": "(“[Tjribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law.”); Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 670-71 (8th Cir.1986) (“As an arm of tribal government, a tribal housing authority possesses attributes of tribal sovereignty, and suits against an agency like the Housing Authority normally are barred absent a waiver of sovereign immunity.”); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir.1985) (“[Tjribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority.”); accord, e.g., Cameron v. Bay Mills Indian Community, 843 F.Supp. 334, 336 (W.D.Mich.1994) (“Tribal immunity extends to individual tribal officials acting in their representative capacity within the scope of their authority.”). Sovereign immunity does not bar injunctive or declaratory relief against individual tribal officials who allegedly acted outside the scope of their authority. See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 171, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977) (“[W]hether or not the tribe itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law by individual tribal members [and tribal officials] is permissible.”); see also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Burlington Northern R.R. Co. v. Blackfeet Tribe, 924 F.2d at 901-02. , Assuming the truth of the allegations in the plaintiffs’ complaint, as I must in determining a motion to dismiss, see, e.g., Kemats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir._1994), if the defendants’ actions are in violation of the IGRA, then the defendants have acted outside the scope of them authority, because tribes are not authorized to conduct Class II and III gaming in violation of the IGRA’s provisions. See 25 U.S.C. § 2713 (providing authority for NIGC to levy civil fines against or order temporary closure of Indian gaming for violations of the IGRA’s provisions). Once again, unfortunately, my analysis does not end there. Even assuming that the defendants acted in violation of" }, { "docid": "19264707", "title": "", "text": "recommended dismissal for lack of subject matter jurisdiction because this was a non-federal claim. The district court adopted these recommendations and dismissed all claims. On appeal, Allen, who is now represented by counsel, concedes that the Tribe is immune from suit. But he contends that this immunity does not extend automatically to the Gold Country Casino. He urges that the district court be required to apply a three-part test to determine whether the Casino is “analogous to a governmental agency or operating in a governmental capacity as an arm of the tribe.” Allen argues in the alternative that, if the Casino is immune, it waived its immunity by referring to federal law in its employment materials. We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b). See, e.g., Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir.2004). We also review de novo questions of sovereign immunity and subject matter jurisdiction. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004). II. Discussion A. Sovereign Immunity of the Casino Although the Supreme Court has expressed limited enthusiasm for tribal sovereign immunity, the doctrine is firmly ensconced in our law until Congress chooses to modify it. See Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 757-60, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). This immunity extends to business activities of the tribe, not merely to governmental activities. See id. at 760, 118 S.Ct. 1700; Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1100 (9th Cir.2002). When the tribe establishes an entity to conduct certain activities, the entity is immune if it functions as an arm of the tribe. See, e.g., Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 978 (9th Cir.2006) (holding that Blackfeet Tribe’s sovereign immunity extends to Blackfeet Housing Authority); Redding Rancheria v.Super. Ct., 88 Cal.App.4th 384, 388-89, 105 Cal.Rptr.2d 773 (2001) (holding that off-reservation casino owned and operated by tribe was arm of the tribe, and therefore was entitled to sovereign immunity); Trudgeon v. Fantasy Springs Casino, 71 Cal.App.4th 632, 642, 84 Cal.Rptr.2d 65 (1999) (recognizing sovereign immunity of" }, { "docid": "19264706", "title": "", "text": "supplemental jurisdiction. I. Facts Allen was employed by Gold Country Casino as a surveillance supervisor. Gold Country Casino is a tribal entity formed by a compact between the federally recognized Tyme Maidu Tribe and the State of California. The Casino is wholly owned and operated by the Tribe. Allen contends he was discharged in retaliation for reporting rats in the Casino’s restaurant and for applying to “the white man’s court” for guardianship of three tribal children. Allen obtained a right to sue letter from the Equal Employment Opportunity Commission and, proceeding pro se, filed this action in federal district court. Allen named as defendants the Casino, the Tribe, Mattie Mayhew, and John Does 1 thru 300, against whom he asserted various employment, civil rights, and conspiracy claims. The magistrate judge recommended that the claims against the Tribe be dismissed on the ground of sovereign immunity. The magistrate judge assumed without analysis that the Tribe’s immunity extended to the Casino. The magistrate judge found that the only remaining claim was for false accusations against Mayhew. He recommended dismissal for lack of subject matter jurisdiction because this was a non-federal claim. The district court adopted these recommendations and dismissed all claims. On appeal, Allen, who is now represented by counsel, concedes that the Tribe is immune from suit. But he contends that this immunity does not extend automatically to the Gold Country Casino. He urges that the district court be required to apply a three-part test to determine whether the Casino is “analogous to a governmental agency or operating in a governmental capacity as an arm of the tribe.” Allen argues in the alternative that, if the Casino is immune, it waived its immunity by referring to federal law in its employment materials. We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b). See, e.g., Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir.2004). We also review de novo questions of sovereign immunity and subject matter jurisdiction. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004). II. Discussion A. Sovereign Immunity of the Casino" }, { "docid": "5485891", "title": "", "text": "concluded that Pink could not bring suit against Modoc under Title VII. D. ISDEAA Pink also contends that the district court erred by holding that the ISDEAA did not confer it subject matter jurisdiction. Pink is incorrect. Congress sought to achieve essentially the same goal when it enacted the ISDEAA as when it excluded “tribes” from the operation of Title VII. Both the ISDEAA and the Title VII “tribe” exemption attempt to aid tribal entities in their efforts to conduct their own affairs and economic activities with as much autonomy as possible. See Dille, 801 F.2d at 874. Accordingly, the ISDEAA states, “[n]othing in this Act shall be construed as affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe.” 25 U.S.C. § 450n(l). Because the ISDEAA does not effect tribal sovereign immunity, the district court was correct in holding that the IS-DEAA could not confer subject matter jurisdiction. Pink additionally contends that Mo-doc waived its immunity because the alleged misconduct occurred outside of the reservation land. We disagree. Congress did not limit the scope of tribal immunity, as such, the tribes retain the extraterritorial component of sovereign immunity. See Richardson v. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 596 (9th Cir.1992); see also 25 U.S.C. § 450n (stating that nothing in the ISDEAA shall be construed as waiving a tribe’s sovereign immunity). Thus, Modoc did not lose its exemption simply because it performed the self-determination contract for health services off the reservation. See In re Greene, 980 F.2d at 596. E. Individual Liability Pink contends that the district court erred by dismissing her employment discrimination claims against Forrest because Title VII imposes individual liability. We disagree. Assuming arguendo that Modoc’s immunity did not extend to Forrest, civil liability for employment discrimination does not extend to individual agents of the employer who committed the violations, even if that agent is a supervisory employee. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir.1993). The district court therefore properly dismissed Pink’s employment discrimination claims against Forrest, a Modoc employee. F. Indian" }, { "docid": "15216507", "title": "", "text": "financial relationship between the tribe and the entities; and (6) whether the purposes of tribal sovereign immunity are served by granting immunity to the entities. We conclude that, under these factors, the Authority and the Casino have a sufficiently close relationship to the Tribe to share in its immunity. Because the district court wrongly concluded that the Authority and the Casino were not subordinate economic entities entitled to tribal sovereign immunity,' and consequently did not reach the issue of whether the Authority and the Casino waived their immunity from suit through licensing agreements with BMG, we remand for the district court to address that question in the first instance. However, for reasons that we discuss below, we do not direct or require the district court to permit jurisdictional discovery in connection with such further proceedings. I. The Authority and the Casino’s Appeal A. Standard of Review Our inquiry into whether the Authority and the Casino are subordinate economic entities that share in the Tribe’s immunity from suit involves a mixed question of law and fact. This case presents a legal issue — the appropriate test to determine whether economic entities associated with a tribe may share in the tribe’s immunity. It also presents a factual issue — involving the application of that test to the relationship between the Tribe and the Authority and the Casino. Ordinarily, “[w]e review de novo a district court’s denial of a motion to dismiss based on tribal sovereign immunity.” Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007). But “[w]here, as here, subject-matter jurisdiction turns on a question of fact, we review the district court’s factual findings for clear error and review its legal conclusions de novo.” Native Am. Distrib., 546 F.3d at 1293 (emphasis omitted); accord United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 54 (1st Cir.2009) (“When the district court does not rule on the pleadings alone but, rather, takes evidence in connection with a motion to dismiss for want of subject matter jurisdiction, the court’s factual findings are reviewed for clear error.”). In" }, { "docid": "8014507", "title": "", "text": "court lacked personal jurisdiction over him, that his property had been taken without just compensation, that Lone Butte was liable for conversion, and asking the court to issue an injunction to prevent Lone Butte from enforcing the tribal court judgment. The district court, in May 1996, dismissed his complaint for failure to exhaust tribal remedies. In October 1996, Lone Butte requested that the tribal appellate court render a decision in the pending appeal. In November 1996, Johnson filed a second complaint in the same district court, this time alleging, in relevant part, that the tribal court had violated the Indian Civil Rights Act and that Lone Butte had wrongfully converted his property. Johnson also asked the district court to issue a declaratory judgment and an injunction prohibiting Lone Butte from enforcing the tribal court judgment because he claimed that the tribal court had lacked personal jurisdiction over him and his property. He alleged that the district court had jurisdiction over the Tribe under 28 U.S.C. § 1331, and over Lone Butte under 28 U.S.C. § 1332. In October 1997, the district court again dismissed Johnson’s action. II As sovereign nations, Indian tribes possess common law immunity from suit in federal court. See Santa Clara, Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Accordingly, the district court correctly dismissed Johnson’s claims against the Tribe pursuant to the Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1302(5) and 1302(8). The only recognized exception to a sovereign immunity defense under the ICRA is a habeas corpus action. See Santa Clara, 436 U.S. at 59; Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir.1998). Because Johnson does not seek such relief, and the Tribe has not waived its sovereign immunity defense, the district court properly dismissed Johnson’s claims against the Tribe. Ill Because Lone Butte and Johnson are citizens of different states and the amount in controversy exceeds $75,000, the district court had concurrent jurisdiction with the tribal court over Johnson’s claims against Lone Butte pursuant to 28 U.S.C. § 1332. When federal and" }, { "docid": "17443079", "title": "", "text": "United States enters into commercial business it abandons its sovereign capacity and is to be treated like any other corporation.”). The court can identify no reason to depart from this principle here. Accordingly, CND, a separate legal entity organized under the laws of another sovereign, Oklahoma, cannot share in the Nation’s immunity from suit, and it is not necessary to apply the six-factor BMG test. C. Preservation While this court has no doubt the subordinate economic entity doctrine is inapplicable on the facts of this case, after reviewing the record the court concludes Somerlott did not properly preserve this basis for reversal before the district court. “An issue is preserved for appeal if a party alerts the district court to the issue and seeks a ruling.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th Cir.2007). The majority of Somerlott’s arguments before the district court were not directed to the issue of sovereign immunity at all, but rather toward the separate issue of whether the statutory and non-statutory exemptions for Indian Tribes in Title VII and the ADEA applied to the Nation. To the extent Somerlott did discuss tribal sovereign immunity, she agreed the subordinate economic entity/arm of the tribe analysis was the appropriate rubric through which to analyze her claims. For example, she argued “[B]ecause CND does not meet the definition of an arm of the Tribe as required for immunity, its Motion to Dismiss should be denied.” Although it resolved the test against her, the district court interpreted Somerlott as conceding the applicability of the subordinate economic entity test, stating: “Upon application of the ‘arm of the tribe’ rationale advocated by Plaintiff,” CND meets most, if not all, of the criteria commonly used by courts in determining whether or not a tribal commercial enterprise is an “ ‘arm of the tribe.’ ” In her response to the motion to dismiss, Somerlott admittedly emphasized CND’s status as a corporation and business entity, but she never argued this fact in itself precluded CND from sharing in the Nation’s immunity. More importantly, she did not argue CND’s status" }, { "docid": "10674158", "title": "", "text": "Weber, No. Civ. 09-4182, 2010 WL 1999352, at *9 (D.S.D. May 18, 2010) (“For a tribal agency to have sovereign immunity, the agency must be established by a tribal council pursuant to its powers of self-government and serve as an arm of the tribe.”). Great Plains, however, is not an “arm” of a single tribe, but is composed of sixteen tribes. Tribal sovereign immunity may extend to ah organization created by more than one tribe. See Amerind, 633 F.3d at 685 (administrator of self-insurance risk pool for Indian housing authorities was entitled to sovereign immunity where administrator was incorporated by three charter tribes and issued a federal charter under 25 U.S.C. § 477); Taylor v. Ala. Intertribal Council Title IV, 261 F.3d 1032 (11th Cir.2001). In Taylor, an employee of the Alabama Intertribal Title IV (“AIC”) brought a 42 U.S.C. § 1981 employment discrimination claim against AIC. 261 F.3d at 1034. The Eleventh Circuit, finding that subjecting AIC to suit under § 1981 would contradict congressional intent and interfere with tribal self government, concluded that the claims against AIC must be dismissed as “barred by Indian sovereign immunity.” Id. at 1034-36. The Eleventh Circuit explained that “AIC is an intertribal consortium, with a Board dominated by tribal chiefs and tribe members, organized to promote business opportunities for and between tribes; as such, we conclude that it is entitled to the same protections as a tribe itself.” Id. at 1036; William C. Canby, American Indian Law 102 (5th ed. 2009) (citing Taylor for the proposition that tribal sovereign immunity applies to “intertribal councils.”). Two federal appellate courts, when faced with facts similar to those present in this case, have held that an organization formed by a group of tribes fell within the “Indian tribe” exemption of Title VII. Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir.1998); Dille v. Council of Energy Res. Tribes, 801 F.2d 373 (10th Cir.1986). These Title VII cases do not directly concern whether an organization formed by a group of tribes is entitled to the tribes’ sovereign immunity, but the discussion in the" }, { "docid": "19264705", "title": "", "text": "OPINION CANBY, Circuit Judge. Mark Allen is a former employee of the Gold Country Casino, which is owned and operated by the Tyme Maidu Tribe of the Berry Creek Ranchería in California. After the Casino fired Allen, he sued it and the Tribe. The district court dismissed the claims against the Tribe and the Casino on the ground of sovereign immunity. Allen concedes the Tribe’s immunity, but argues that the district court erred in extending that immunity to the Casino without scrutinizing the relationship between the Tribe and the Casino. We find no error in the district court’s dismissal of Allen’s claims against the Casino because the record and the law establish sufficiently that it functions as an arm of the Tribe. Allen also asserted various claims against Mattie Mayhew, a tribal member, and John Doe defendants. We reverse in part the district court’s dismissal of these claims and remand for consideration of Allen’s claims under 42 U.S.C. §§ 1981 and 1985, along with any state law claims over which the district court may exercise supplemental jurisdiction. I. Facts Allen was employed by Gold Country Casino as a surveillance supervisor. Gold Country Casino is a tribal entity formed by a compact between the federally recognized Tyme Maidu Tribe and the State of California. The Casino is wholly owned and operated by the Tribe. Allen contends he was discharged in retaliation for reporting rats in the Casino’s restaurant and for applying to “the white man’s court” for guardianship of three tribal children. Allen obtained a right to sue letter from the Equal Employment Opportunity Commission and, proceeding pro se, filed this action in federal district court. Allen named as defendants the Casino, the Tribe, Mattie Mayhew, and John Does 1 thru 300, against whom he asserted various employment, civil rights, and conspiracy claims. The magistrate judge recommended that the claims against the Tribe be dismissed on the ground of sovereign immunity. The magistrate judge assumed without analysis that the Tribe’s immunity extended to the Casino. The magistrate judge found that the only remaining claim was for false accusations against Mayhew. He" }, { "docid": "3343102", "title": "", "text": "unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). In this case, the Nation has not waived its tribal sovereign immunity and Congress has not clearly abrogated tribal sovereign immunity in Title VII cases. Dawavendewa, undaunted, argues that tribal sovereign immunity does not exist because the suit could be sustained against tribal officials. We disagree. To support this proposition, Dawavendewa relies heavily on Burlington N.R.R. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir.1991), and Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir.1996). In Blackfeet Tribe, we extended the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to tribal officials. In particular, we held that, in cases seeking merely prospective relief, sovereign immunity does not extend to tribal officials acting pursuant to an unconstitutional statute. See Blackfeet Tribe, 924 F.2d at 901. In Aspaas, the Navajo Supreme Court determined that the Arizona Public Service Company’s (“APS”) anti-nepotism policy violated Navajo employment discrimination law. APS then filed suit in federal district court seeking injunctive relief against the Navajo Nation, its executive agencies, Navajo Supreme Court Justices, and tribal officials challenging their authority to regulate APS’s employment practices. The defendants argued that they enjoyed sovereign immunity from suit. We held that the Nation and its executive agencies were immune from suit, but reaffirming our decision in Blackfeet Tribe, we held that sovereign immunity did not bar prospective relief against the individual tribal officials acting beyond the scope of their authority in violation of federal law. See Aspaas, 77 F.3d at 1133-34. Dawavendewa’s argument strikes us as an attempted end run around tribal sovereign immunity. Neither Blackfeet Tribe nor Aspaas insinuated that a plaintiff may circumvent the barrier of sovereign immunity by merely substituting tribal officials in lieu of the Indian Tribe. Rather, the doctrine announced in Blackfeet Tribe and reaffirmed in Aspaas permitted suits against officials allegedly acting in contravention of federal law. That doctrine is inapplicable to Dawav-endewa’s suit. Unlike" }, { "docid": "21008639", "title": "", "text": "seq. (“the Act”). In his complaint, Sanderlin alleged that he was able to perform the essential functions of a law enforcement officer either with or without reasonable accommodation, and that “[t]he Defendant refused to provide a reasonable accommodation to the Plaintiff for his continued employment.” Sanderlin sought reinstatement, with any necessary reasonable accommodation, to his previous position, or alternatively front pay. Sanderlin also sought compensatory and punitive damages and back pay. On July 30, 1999, the Tribe moved to dismiss for lack of subject matter jurisdiction. The Tribe argued that it was immune from suit under the Act because it had not waived its tribal sovereign immunity nor had Congress expressly and unmistakably abrogated that immunity. While the motion to dismiss was pending, Sanderlin filed a motion to compel discovery, seeking to compel the Tribe to produce documents reflecting its receipt of funds from the United States Government (“Government”). These documents, according to Sanderlin, were relevant to establishing jurisdiction. On December 21, 1999, the district court granted the Tribe’s motion to dismiss, holding that it did not have jurisdiction over Sanderlin’s claim because the Tribe had not waived its right to tribal immunity and Congress had not abrogated tribal immunity under the Act. In the same order, the court also denied all pending motions, including Sanderlin’s motion to compel, as moot. On December 30, 1999, Sanderlin, citing new evidence, moved the district court to reconsider the dismissal order. The district court denied that motion on January 5, 2000. This appeal followed. II. We review de novo the district court’s dismissal of a complaint for sovereign immunity. See State of Florida v. Seminole Tribe, 181 F.3d 1237, 1240-41 (11th Cir.1999); Florida Paraplegic Ass’n, Inc. v. Miccosukee Tribe of Indians, 166 F.3d 1126, 1128 (11th Cir.1999). The denial of a motion for reconsideration or a motion to compel discovery is reviewed only for abuse of discretion. See Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.1998) (“This court reviews the denial of a Rule 59 motion [for reconsideration] for an abuse of discretion.”); Burger King Corp. v. Weaver, 169 F.3d 1310," }, { "docid": "5553735", "title": "", "text": "hiring preference policy or comply with the lease requiring it.” By similar logic, we have elsewhere found that tribes are necessary parties to actions that might have the result of directly undermining authority they would otherwise exercise. See Pit River Home v. United States, 30 F.3d 1088, 1092 (9th Cir.1994) (Pit River Tribal Council was a necessary party in suit challenging its designation by the Secretary of Interior as the beneficiary of reservation property); Confederated Tribes of Chehalis Reservation v. Lujan, 928 F.2d 1496, 1497 (9th Cir.1991) (Quinault Nation was a necessary party in suit challenging the United States’ continued recognition of the Nation as sole governing authority of the Quinault Indian Reservation). Following these cases, we conclude that the Navajo nation is a necessary party under Rule 19(a). 3. Feasibility of Joinder We turn next to the issue of whether it is feasible to join the Navajo Nation. Peabody does not contest that the court could exercise personal jurisdiction over the Nation. Rather, Peabody argues that the district court lacked jurisdiction because of the Nation’s sovereign immunity. In many cases in which we have found that an Indian tribe is an indispensable party, tribal sovereign immunity has required dismissal of the case. See, e.g., Dawavendewa II, 276 F.3d at 1163; American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1027 (9th Cir.2002). By contrast, in a suit brought by the EEOC, the Nation’s tribal sovereign immunity does not pose a bar to its joinder. Tribal sovereign immunity does not “act as a shield against the United States,” even when Congress has not specifically abrogated tribal immunity. United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir.1987). Because the EEOC is an agency of the United States, “tribal sovereign immunity does not apply in suits brought by the EEOC.” Dawavendewa II, 276 F.3d at 1162-63; Karuk, 260 F.3d at 1075. Peabody argues, however, that the district court lacked the authority to join the Nation because the EEOC cannot state a claim against an" }, { "docid": "6101449", "title": "", "text": "U.S. at 486, 119 S.Ct. 1430 (noting that the Act “provides clear indications of the congressional aims of speed and efficiency”). * * * * * * The foregoing circumstances are determinative in the absence of a competing proceeding in a tribal court. We do not decide whether these circumstances would control the outcome if a tribal proceeding had been begun (and a finding were made that it was pending in a Tribal Court constituted to hear it), or even if such proceeding were started after the federal suit was filed. We hold that where no ongoing tribal proceeding exists, and a non-member of the tribe properly invokes the jurisdiction of a federal court to litigate non-tribal law, the tribal exhaustion rule does not mandate abstention, and the district court must therefore fulfill its unflagging obligation to exercise its discretion. The district court’s contrary holding was error. II On a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). We review the district court’s “factual findings for clear error and legal conclusions de novo.” Id. (internal quotation omitted). In this case, the pertinent facts are undisputed. A. Claims Against the AHA As a matter of federal common law, an Indian tribe enjoys sovereign immunity from suit except where “Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 356-57 (2d Cir.2000). Garcia concedes that the AHA, as an agency of the St. Regis Tribe, enjoys the same presumption of immunity. See Bassett, 204 F.3d at 358. However, she argues that both exceptions to the immunity principle apply to this case. We consider her two arguments in turn. 1. Congressional Abrogation “[Congressional abrogation of tribal immunity, like congressional abrogation of other forms of sovereign immunity, ‘cannot be implied but must be unequivocally expressed.’ ” Id." }, { "docid": "17443076", "title": "", "text": "against the entities would result in direct financial liability for the tribe or otherwise imperil the tribe’s assets. Id. at 1179. This court reversed, holding the district court applied the wrong legal standard by treating “the financial impact on a tribe of a judgment against its economic entities as a threshold inquiry.” Id. at 1181. Instead, to determine whether a tribe’s economic entity is entitled to share in the tribe’s immunity, this court set forth a six-factor test for assessing the closeness of the relationship between the entity and the tribe. Id. In concluding a subordinate economic entity analysis applied to this case, the district court overlooked a crucial distinction between CND and the entities at issue in previous cases in which the test has been applied: CND is incorporated under state law. By contrast, the entities to which a subordinate economic entity test has traditionally been applied, like the Casino and Authority in BMG, have all been organized, in some form or another, under tribal law. See id. at 1191; Allen v. Gold Country Casino, 464 F.3d 1044, 1046-47 (9th Cir.2006) (applying analysis to casino organized pursuant to tribal ordinance and interstate gaming compact); Johnson v. Harrah’s Kan. Casino Corp., No. 04-4142, 2006 WL 463138, at *2-8 (unpublished) (D.Kan. Feb. 23, 2006) (concluding tribal sovereign immunity does not extend to Nevada corporation conducting tribal business pursuant to contract with the tribe); see also Felix S. Cohen, Handbook of Federal' Indian Law § 7.05(l)(a) (2005 ed.) (“Although the immunity extends to entities that are arms of tribes, it apparently does not cover tribally chartered corporations that are completely independent of the tribe.” (emphasis added) (citation omitted)). Thus, the subordinate economic entity test is inapplicable to entities which are legally distinct from their members and which voluntarily subject themselves to the authority of another sovereign which allows them to be sued. See Okla. Stat. tit. 18, § 2004(B)(1) (“A limited liability company formed under this act is a separate legal entity....”); id. § 2003(1) (“Each limited liability company may ... [s]ue, be sued, complain and defend in all courts.... ”)• This" }, { "docid": "8046514", "title": "", "text": "11, 1997. . In light of our conclusion in part II.B, infra, that the State has failed to state a claim against Chairman Billie, it might be argued that the State has likewise failed to state a claim against the Tribe and therefore that it is unnecessary for us to determine whether the Tribe's sovereign immunity bars this suit. This argument, however, ignores the fundamentally jurisdictional nature of a claim of sovereign immunity. See, e.g., United States v. County of Cook, Ill., 167 F.3d 381, 390 (7th Cir.1999) (noting the Supreme Court's “thoroughgoing equation of sovereign immunity to a jurisdictional shortcoming”); Fletcher v. United Slates, 116 F.3d 1315, 1326 (10th Cir.1997) (holding that the Osage Tribal Council and its members “properly and adequately challenged federal jurisdiction on the ground of tribal sovereign immunity”); Kreig v. Prairie Island Dakota Sioux (In re Prairie Island Dakota Sioux), 21 F.3d 302, 305 (8th Cir.1994) (finding that tribal \"sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction”); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16 (1st Cir.1993) (holding that tribal immunity was not waived or abrogated, and thus that district court correctly dismissed action for lack of jurisdiction); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989). Because of its jurisdictional nature, we must consider the Tribe’s claim of sovereign immunity before reaching the issue of failure to state a claim. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-62, 98 S.Ct. 1670, 1677-79, 56 L.Ed.2d 106 (1978) (deciding first that suit against tribe was barred by sovereign immunity, and then finding that plaintiffs had no implied right of action against tribal official). . See, e.g., Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997) (citing cases regarding waiver of tribal immunity as support for proposition that Congress abrogated tribal immunity in IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 744-45 (D.S.D.1992) (conflating issues of whether tribe waived sovereign immunity by engaging in gaming under IGRA and whether tribe's immunity extended to action seeking prospective equitable relief). Some of" }, { "docid": "23180090", "title": "", "text": "issues. In Suits 1 & 2, Nos. 93-1696, 93-1699, Baker Electric v. Chaske, the RECs appeal the dismissal of their cases based on the Tribe’s sovereign immunity. In Suit 3, No. 93-1995, Tribe v. NDPSC, the Tribe seeks review of the district court’s rescission of the TRO that had enjoined NDPSC from interfering with the Tribe’s relations with Otter Tail. Finally, in Suit 4, No. 93-1701, Otter Tail v. Hagen, Otter Tail appeals the district court’s dismissal of its case based on res judicata. We examine these cases in turn. A. Suits 1 & 2, Nos. 93-1696, 93-1699, Baker Electric v. Chaske The RECs appeal the district court’s dismissal of their suits against the members of the Tribal Utilities Commission. The RECs argue that the tribal officers are not protected by the Tribe’s sovereign immunity when they act pursuant to an unconstitutional tribal statute. The Tribe argues that an officer suit is not appropriate because the Tribe had authority to promulgate its Tribal Utilities Code and because the tribal officers have not acted. Because the district court’s analysis in support of its dismissal is inconsistent with our precedent, we reverse and remand to the district court. Whether a suit is barred by a Tribe’s sovereign immunity is an issue of law that we determine de novo. See Burlington N. R.R. v. Blackfeet Tribe, 924 F.2d 899, 901 (9th Cir.1991). “Indian tribes and their governing bodies possess common-law immunity from suit. They may not be sued absent express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress.” Id.; accord Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir.1984). The Tribe’s sovereign immunity, however, is subject to the well-established exception described in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908). See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514, 111 S.Ct. 905, 912, 112 L.Ed.2d 1112 (1991); Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458, 460 (8th Cir.1993). In Ex parte" }, { "docid": "8046515", "title": "", "text": "Cir.1993) (holding that tribal immunity was not waived or abrogated, and thus that district court correctly dismissed action for lack of jurisdiction); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989). Because of its jurisdictional nature, we must consider the Tribe’s claim of sovereign immunity before reaching the issue of failure to state a claim. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-62, 98 S.Ct. 1670, 1677-79, 56 L.Ed.2d 106 (1978) (deciding first that suit against tribe was barred by sovereign immunity, and then finding that plaintiffs had no implied right of action against tribal official). . See, e.g., Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997) (citing cases regarding waiver of tribal immunity as support for proposition that Congress abrogated tribal immunity in IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 744-45 (D.S.D.1992) (conflating issues of whether tribe waived sovereign immunity by engaging in gaming under IGRA and whether tribe's immunity extended to action seeking prospective equitable relief). Some of this confusion may stem from the Santa Clara Pueblo decision, in which the Supreme Court considered whether a particular statutory provision could \"be read as a general waiver of the tribe's sovereign immunity” by Congress. 436 U.S. at 59, 98 S.Ct. at 1677 (emphasis added). We believe that it is most conducive to reasoned analysis to have separate terms for a congressional deprivation of tribal sovereign immunity as distinguished from a voluntary tribal relinquishment thereof. In this opinion, therefore, we refer to the former as a congressional abrogation of immunity and to the latter as a tribal waiver of immunity. . The Mescalero panel actually used the word \"waived.” We substitute the word \"abrogated” for the reasons discussed in note 5, supra. . Citations to legislative history or inferences from general statutory language are insufficient bases for a finding of congressional abrogation. See Florida Paraplegic Ass’n, 166 F.3d at 1131. . See Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677 (noting that waivers of sovereign immunity “cannot be implied but must be" }, { "docid": "23342879", "title": "", "text": "court presumed the allegations in the amended complaint and the exhibits attached to it as true for the purposes of deciding the motion. Id. We review de novo a district court’s dismissal under Rule 12(b)(1) and its ruling on sovereign immunity. See Ordinance 59 Ass’n v. United States Dep’t of the Interior, 163 F.3d 1150, 1152 (10th Cir.1998). “Our independent determination of the issues uses the same standard employed by the district court. Accepting the complaint’s allegations as true, we consider whether the complaint, standing alone, is legally sufficient to state a claim upon which relief can be granted.” Id. (citations omitted). In holding that the Tribal defendants were entitled to sovereign immunity, the district court presumed the following facts as set out in plaintiffs’ complaint: the Shoshone and Arapaho Tribes created a tribal agency known as SATSS pursuant to the Intergovernmental Agreement, SATSS is an agency of the Shoshone and Arapaho Tribes, and Mssrs. Kennah and Lone Bear were at all relevant times employees of SATSS. In addition, the court relied on the Intergovernmental Agreement, Title III of the Law and Order Code of the Tribes, and copies of the pleadings from the Tribal court’s abuse/neglect proceedings. While plaintiffs dispute the legal effect of these documents, they do not dispute the text of the documents themselves. We agree with the district court that this material presents the relevant undisputed jurisdictional facts, and that sovereign immunity protects the Tribal de fendants in this case. “Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. As an aspect of this sovereign immunity, suits against tribes are barred in the absence of an unequivocally expressed waiver by the tribe or abrogation by Congress.” Fletcher, 116 F.3d at 1324 (citations and internal quotations omitted). Plaintiffs do not contend that Congress has abrogated the Tribes’ immunity in this case, arguing only that the Intergovernmental Agreement and several administrative forms used by SATSS constitute a waiver by the Tribes. We disagree. “It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Santa" }, { "docid": "17443069", "title": "", "text": "the doctrine of tribal sovereign immunity and that it was not an “employer” under Title VII, see 42 U.S.C. § 2000e(b)(l) (excluding Indian tribes from definition of “employer”). The district court deferred ruling on the motion, granting limited discovery on the issue of whether CND is shielded by the Nation’s sovereign immunity. During the pendency of this discovery period, Somerlott amended her complaint and CND filed a new motion to dismiss arguing not only that it was protected by tribal sovereign immunity and the tribal exemption to Title VII, but also that it was exempt from the ADEA. See EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir.1989). Somerlott filed her response to CND’s motion to dismiss on October 16, 2009. Somerlott’s response to CND’s motion focused primarily on the statutory exemption issue. She argued: “The Indian Tribe’s relationship to CND is so attenuated that CND cannot be entitled to the Tribe’s exemption from the strictures of Title VII and the ADEA.” She attempted to distinguish EEOC v. Cherokee Nation by arguing CND’s activities were not intramural and did not implicate the Nation’s treaty-protected rights to self-governance. After discussing several cases concerning the applicability of the ADEA to tribes and tribal entities: Somerlott stated: “A review of the relevant case law where a tribe or arm of a tribe is given exemption has as a common element intramural disputes or matters affecting a tribe’s self-governance.” Because the activities giving rise to her claim — the operation of a chiropractic clinic serving non-Indian clients — are not normally considered governmental functions, Somerlott argued, neither the Title VII exemption nor the ADEA exemption should apply to CND. In analyzing CND’s motion to dismiss, the district court undertook to determine whether CND constituted a “subordinate economic entity” of the Nation entitled to share in the Nation’s sovereign immunity. Noting that, “[ajlthough the subordinate economic entity analysis has been widely adopted, its implementation is rarely uniform,” the district court considered a variety of factors used by other courts to determine whether the relationship between a tribe’s economic entities and the tribe itself is" }, { "docid": "16096085", "title": "", "text": "676, 680-81 (5th Cir.1999) (distinguishing Kiowa and holding that \"while the district court correctly dismissed the damages claim based on sovereign immunity, tribal immunity did not support its order dismissing actions seeking declaratory and injunctive relief”); Comstock Oil & Gas v. Ala. and Coushatta Indian Tribes of Tex., 261 F.3d 567, 571-72 (5th Cir.2001) ('TTjhe district court erroneously concluded that the Tribe was entitled to sovereign immunity against oil companies' claims for equitable relief.”). . Moreover, with respect to tribal officials, the Supreme Court has also held that a suit for equitable relief against tribal officials for violation of state law may be brought in state court. See Puyallup Tribe, Inc. v. Dep’t of Game of Wash., 433 U.S. 165, 171-72, 97 S.Ct. 2616, 53 L.Ed.2d 667 (\"[Wjhether or not the Tribe .itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law by individual tribal members is permissible.”). In addition, in Garcia, the Second Circuit cited Puyallup Tribe in concluding that lawsuits for injunctive relief may be brought against tribal officials. 268 F.3d at 87. Therefore, pursuant to Puyallup Tribe, the lawsuits in the instant case could have proceeded in state court against tribal officials and a defense of sovereign immunity would have been unavailable. There is no basis for concluding that the removal of these claims against individual tribal members to federal court should alter this analysis. . Plaintiffs also set forth a number of other grounds to defeat any claim of sovereign immunity, including (1) defendants do not have sovereign immunity from suit for alleged violations of the SPDES program requirements because Congress abrogated such immunity in the Clean Water Act (Pits. Proposed Conclusions of Law, at 133-36); and (2) defendants have no immunity from suit brought by the State because the Nation is not federally recognized and is subject to state jurisdiction under New York law (Id. at 138-40). Because the Court has found the defense of sovereign immunity to be unavailable in this lawsuit for the reasons described above, the Court declines to" } ]

[ { "docid": "20370952", "title": "", "text": "discretion in granting MNB an extension of time in which to respond to her discovery requests. II. We review the district court’s grant of summary judgment for MNB de novo, Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 335 (7th Cir.1991), and review the record, and all reasonable inferences which can be drawn from it, in the light most favorable to Jones, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists the non-moving party must show, by specific factual allegations, the existence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). “Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.” McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir.1993). The district court held that Indiana’s two year statute of limitations for personal injury actions barred all of Jones’ promotion claims except one. Ind.Code § 34-1-2-2(1) (1993). We have previously determined that this statute of limitations applies to § 1981 claims. Coopwood v. Lake County Community Development Dept., 932 F.2d 677, 679 (7th Cir.1991). Jones filed her action on March 28, 1991, thus she can only complain about those promotions MNB denied her after March 28, 1989, namely a promotion to officer status sometime in 1989. However, Jones claims that these various promotion denials (putting aside for now the 1989 officer position) constitute a “continuing violation” so that they are not time-barred. In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1971), the Supreme Court held that a Title VII plaintiff may recover for acts barred by" } ]

[ { "docid": "4088383", "title": "", "text": "judgment as a matter of law.” Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 247, 106 S.Ct. at 2510. A factual issue is material only if resolving the factual issue might affect the suit’s outcome under the governing substantive law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992). “Irrelevant or unnecessary factual disputes do not preclude summary judgment.” Id. Rule 56 requires Conrail and the Union as the moving parties to show there is no genuine issue on an essential element of Eckles’ claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden then shifts to Eckles to show a genuine issue of material fact. An issue is “genuine” when the non-moving party comes forward with evidence sufficient to enable the trier of fact to find in his favor on the issue. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Methodist Medical Center of Illinois v. American Medical Security, Inc., 38 F.3d 316, 319 (7th Cir.1994). In determining that question, Eckles is entitled to the benefit of favorable inferences from the evidence, so long as those inferences are reasonable. Jones v. Merchants National Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir.1994). The Merits Eckles claims that his epilepsy required that he work on ground level, in a location where others could see him, and only during first or second shift. As a practical matter, these conditions required that he be transferred from Avon to Hawthorne and be given preferences over more senior yardmasters in scheduling. Eckles claims that the ADA’s requirement that disabled employees be reasonably accommodated required Conrail and the Union to place and maintain him in the Hawthorne position without regard to the seniority of other employees who would have first claim on the position under the collective bargaining agreement. In the alternative, Eckles relies on Rule 2-H-l, the provision in the collective bargaining agreement that permits Conrail and the Union to agree to such a transfer of a disabled employee. He argues that the ADA required that Conrail and the Union agree to place" }, { "docid": "23377096", "title": "", "text": "with regulations governing cardiovascular devices. Garrett, an executive who participated in Nethercutt’s interviews, noted his impression of Nethercutt as, among other things, “young and [has] good growth potential.” Biosound hired Nether-cutt. Courtney filed this lawsuit, alleging that Biosound’s failure to rehire him was motivated by his age. The district court granted summary judgment in favor of Bio-sound, and Courtney appeals. II. Analysis We review a grant of summary judgment de novo, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), viewing the record and the inferences drawn from it in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). We will affirm if there is no genuine issue of material fact such that judgment is proper as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The district court’s decision is proper, “only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993); Billish v. City of Chicago, 989 F.2d 890, 892 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 290, 126 L.Ed.2d 240 (1993). Where the party opposing a motion for summary judgment bears the burden of proof on an issue, he or she must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact requiring trial. Sarsha, 3 F.3d at 1041. The nonmoving party’s own affidavit or deposition can constitute affirmative evidence to defeat a summary judgment motion. Id.; Wilson v. Williams, 997 F.2d 348, 351 (7th Cir.1993). Further, the summary judgment standard is applied “with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (quoting Sarsha, 3 F.3d at 1038). Because evidence directly supporting a claim of intentional discrimination is rare, affidavits and depositions must" }, { "docid": "10238471", "title": "", "text": "drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). A scintilla of evidence in support of the non-moving party’s position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2512. Finally, these summary judgment standards are applied “with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.1995) (citing Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994)). Accordingly, “affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. III. Scope-of-the-Charge and Statute-of-Limitations Defenses A. 1991 Failure-To-Promote Claims 1. Scope of the Charge Defendant first contends that plaintiffs Amended Complaint exceeds the scope of his EEOC" }, { "docid": "1882180", "title": "", "text": "Mayflower. Mayflower did not hire either candidate, and plaintiff alleges that Mayflower breached the so-called contract by not paying for her services. Summary Judgment Standard In a motion for summary judgment, the moving party is entitled to judgment as a matter of law if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The movant has the initial burden to establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the movant has met this burden, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c). The court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). In addition, “this standard is applied with added vigor in employment discrimination cases, where intent and credibility are crucial issues.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). Summary judgment will not be defeated, however, simply because issues of motive and intent are involved. Roger v. Yellow Freight Sys., Inc., 21 F.3d 146,148 (7th Cir.1994). If plaintiff fails to offer evidence to establish motive or intent, summary judgment is appropriate. Id. Discussion I. Counts I through V—I2 U.S.C. § 1981 Claims Plaintiff alleges that Mayflower refused to appoint her as a sales agent because of race-based pressure exerted by Glen Ellyn, Union, and Olsen. Count I seeks damages against Mayflower for refusing to appoint her because of her race. Count II seeks damages against Mayflower vicariously for the acts of its agents. Counts III through V seek damages against the agency defendants for interfering with her right to contract with Mayflower. A. Direct Evidence Approach Plaintiff may prove her § 1981 race discrimination claim in one of two ways. The first is through direct evidence of discriminatory intent. Trans World Airlines, Inc." }, { "docid": "17034045", "title": "", "text": "entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. “This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (citing Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993)). However, neither “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, 106 S.Ct. at 2510, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), is sufficient to defeat a motion for summary judgment. B. ADA Claims 1. Social Security Application LOF argues that McCreary is es-topped from claiming that he is qualified for the job because he twice averred on his application for Social Security benefits that he is unable to work. LOF asserts that one cannot simultaneously be unable to work and able to perform the essential functions of a job. While as a matter of semantics the proposition could have merit, as a matter of Seventh Circuit law it does not. The ADA protects qualified individuals with disabilities from employment discrimination on account of the disability. “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual....” 42 U.S.C. § 12112(a). Only a “qualified individual with a disability” enjoys the protection of the ADA. The plaintiff bears the burden of placing himself within the confines of the statute by at least creating a genuine issue of material fact as to whether he is a “qualified individual with a disability.” See Sieberns v. Wal-Mart" }, { "docid": "23203771", "title": "", "text": "granted summary judgment to Aldi on Sample’s individual claims. We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. We view the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). Summary judgment is appropriate if the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “This standard is applied with added rigor in employment discrimination eases, where intent and credibility are crucial issues.” Sarsha, 3 F.3d at 1038. If the non-moving party bears the burden of proof on an issue, however, that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). We will affirm the judgment of the district court “only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict.” Sarsha, 3 F.3d at 1038; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). A party is entitled to a directed verdict “if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Title VII makes it “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race [or] color.” 42 U.S.C. § 2000e-2(a)(l). Section 1981 of title 42 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts ... as is enjoyed by white citizens.” This" }, { "docid": "10469040", "title": "", "text": "OPINION RICHARD MILLS, District Judge: This case deals with telephones for inmates in an Illinois prison. Four state prisoners have brought this civil rights action pursuant to 42 U.S.C. § 1983. They sue correctional officials and telecommunications providers for alleged infringement of the Plaintiffs’ First Amendment associational rights and their Sixth Amendment right of access to their attorneys. More specifically, the Plaintiffs challenge various aspects of the collect-call system recently implemented at the Western Illinois Correctional Center. Summary judgment will be granted in favor of all Defendants. SUMMARY JUDGMENT STANDARD Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). However, Rule 56(e) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. ‘Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no ‘genuine’ issue for trial.” Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir.1988). A “metaphysical doubt” will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Disputed facts are ma terial only if they might" }, { "docid": "23453814", "title": "", "text": "examining the case within the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Judge Conlon determined that even if Giannopoulos had succeeded in making out a prima facie case of discrimination, Brach had articulated a legitimate, non-discriminatory reason for his discharge and Giannopoulos had presented no evidence reasonably suggesting that this articulated reason was a pretext for discrimination. Mem. Op. at 17-20. Accordingly, she granted the motion for summary judgment. II. We review the district court’s decision to grant summary judgment de novo (e.g., Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1254 (7th Cir.1997)), construing the evidence and any inferences that reasonably may be drawn from it in the light most favorable to the party opposing summary judgment, in this case Giannopoulos (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the party seeking summary judgment shows that there is no genuine issue of material fact requiring a trial, then the non-movant must identify specific evidence revealing that there is such an issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); DeLuca v. Winer Indus., Inc., 53 F.3d 793, 796-97 (7th Cir.1995). We have pointed out on a number of occasions that because employment discrimination cases often turn on questions of intent and credibility, courts in these cases must take care as they weigh summary judgment motions not to invade the province of the factfinder by attempting to resolve swearing contests and the like. See, e.g., Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th" }, { "docid": "4088382", "title": "", "text": "to a yardmaster position at the Hawthorne Yard consistent with the medical restrictions on his activities. He claims that Conrail and the Union were required to give him a special placement under Rule 2-H-l of the collective bargaining agreement to allow him to hold such a position despite his lack of seniority. Eckles also claims Conrail’s actions in refusing to certify him as disabled and deducting certain amounts from his paychecks were in retaliation for his filing of an EEOC charge and the present lawsuit. Both defendants have moved for summary judgment. Summary Judgment Standard When deciding a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Summary judgment should be awarded if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 247, 106 S.Ct. at 2510. A factual issue is material only if resolving the factual issue might affect the suit’s outcome under the governing substantive law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992). “Irrelevant or unnecessary factual disputes do not preclude summary judgment.” Id. Rule 56 requires Conrail and the Union as the moving parties to show there is no genuine issue on an essential element of Eckles’ claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden then shifts to Eckles to show a genuine issue of material fact. An issue is “genuine” when the non-moving party comes forward with evidence sufficient to enable the trier of fact to find in his favor on the issue. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Methodist Medical Center of Illinois v. American Medical Security, Inc., 38 F.3d 316, 319 (7th Cir.1994). In determining that question, Eckles is entitled to" }, { "docid": "21622686", "title": "", "text": "the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As required when deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to plaintiff Henderson, the non-moving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir.1999). However, the existence of some metaphysical doubt does not create a genuine issue of fact. “A party must present more than mere speculation or conjecture to defeat a summary judgment motion.” Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir.1997). The court should neither “look the other way” to ignore genuine issues of material fact, nor “strain to find” material factual issues where there are none. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1363-64 (7th Cir.1988). Where the moving party has met the threshold burden of supporting the motion, the opposing party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. In employment discrimination cases, as in any case, courts weighing summary judgment motions must take care not to invade the province of the fact finder. At the same time, employment cases are governed by the same rules that govern other summary judgment cases. They are equally amenable to summary disposition if there is no genuine dispute as to material facts. Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1031 (7th Cir.1998), citing Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.1997). Disputed and Undisputed Facts With these standards in mind, the following facts are either undisputed or reflect the evidence in the light most favorable to plaintiff Henderson, the non-moving" }, { "docid": "17034044", "title": "", "text": "that he is unable to work. Second, he argues that LOF denied him the reasonable accommodation of reassignment to the less strenuous quality control department, which is the only accommodation that would allow him to continue working for LOF. Third, he argues that LOF discharged him because of his disability. McCreary also claims that LOF intentionally inflicted emotional distress upon him by berating him and forcing him to continue working in the soldering department where the work exacerbated his back injury. Lastly, his wife Wana argues that she suffered a loss of consortium. A Standard of Review We review a district court’s decision to grant summary judgment de novo, drawing our own conclusions of law and fact from the record before us. See Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 181 (7th Cir.1995). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. “This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (citing Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993)). However, neither “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, 106 S.Ct. at 2510, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), is sufficient to defeat" }, { "docid": "9487460", "title": "", "text": "non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First Nat’l Bank of Cicero v. Lewco Sec. Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. In any event, in employment discrimination matters, the standard on summary judgment is applied with “added rigor.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993); see Wohl v. Spectrum Mfg., 94 F.3d 353, 355 (7th Cir.1996). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir.1994), citing the standard set out in Sar-sha: Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. (Citations omitted.) III. DISCUSSION The ADA prohibits employment discrimination “against a qualified individual with a disability because of the disability of such individual 42 U.S.C. § 12112(a). The ADA prohibits an employer from discriminating against such persons with regard to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Id. The term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise" }, { "docid": "23203770", "title": "", "text": "again did not recommend Sample for the promotion. Sample was fired by Kornegay on March 17, 1992. Sample filed a charge of racial discrimination in employment with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of his termination as required by 42 U.S.C. § 2000e-5(e)(l). The EEOC declined to bring an action on Sample’s behalf and issued Sample a right-to-sue letter. Sample then filed this suit in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981, on behalf of a class of past and present African-American Aldi employees “who are, have been, continue to be, or may in the future be” discriminated against by Aldi because of their race. Sample’s individual claims alleged that Aldi’s two failures to promote him and his termination were motivated by his race. The district court granted Aldi’s motion to dismiss Sample’s class allegations because Sample had failed to meet the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1). The district court granted summary judgment to Aldi on Sample’s individual claims. We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. We view the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). Summary judgment is appropriate if the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “This standard is applied with added rigor in employment discrimination eases, where intent and credibility are crucial issues.” Sarsha, 3 F.3d at 1038. If the non-moving party bears the burden of proof on an issue, however, that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). We will affirm the judgment" }, { "docid": "21622685", "title": "", "text": "whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). Only genuine disputes over “material facts” can prevent a grant of summary judgment, and “material facts” are defined as those that might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue exists only if there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As required when deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to plaintiff Henderson, the non-moving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir.1999). However, the existence of some metaphysical doubt does not create a genuine issue of fact. “A party must present more than mere speculation or conjecture to defeat a summary judgment motion.” Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir.1997). The court should neither “look the other way” to ignore genuine issues of material fact, nor “strain to find” material factual issues where there are none. Mechnig v. Sears," }, { "docid": "23121590", "title": "", "text": "Winer Industries had proffered legitimate non-discriminatory reasons for his termination, including its reduction in force and DeLuca’s recent poor sales performance, which DeLuea had failed to show were merely pretextual. This appeal followed. II. We review the district court’s grant of summary judgment for Winer Industries de novo, Cliff v. Bd. of School Com’rs of Indianapolis, 42 F.3d 403, 409 (7th Cir.1994), and review -the record, and all reasonable inferences which can be drawn from it, in the light most favorable to DeLuea, the nón-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists the non-moving party must show, by specific factual allegations, the existence of such an issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (quoting Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993)) (citations omitted). The ADA provides: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112. A plaintiff can prove discrimination by either direct or circumstantial evidence that he was fired because of his disability. See Sarsha, 3" }, { "docid": "13699005", "title": "", "text": "specifically say that he was going to terminate her, plaintiff asserts that his statements constituted a retaliatory threat of termination. Plaintiffs Resignation Plaintiff left Foothill Capital in November, 1995. Her last day in the office was November 1, 1995. Plaintiff had oral surgery on November 2, 1995, and did not return to work thereafter. Plaintiff claims that Sadi-lek later told Frank Rant (“Rant”), an employee of a Foothill Capital competitor, that Foothill Capital fired plaintiff for “double dealing” between Foothill Capital and her husband’s company Banker’s Trust. DISCUSSION I. SUMMARY JUDGMENT STANDARDS A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir.1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir.1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106" }, { "docid": "302857", "title": "", "text": "of the Board of Review of the IDES will be granted. The court now turns to the motion for summary judgment. IV. Motion for Summary Judgment A. Summary Judgment Standards Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any. show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir.1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and in which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). A scintilla of evidence in support of the non-moving party’s position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Finally, these summary judgment standards are applied “with added rigor in employment discrimination" }, { "docid": "302858", "title": "", "text": "material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and in which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). A scintilla of evidence in support of the non-moving party’s position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Finally, these summary judgment standards are applied “with added rigor in employment discrimination eases, where intent and credibility are crucial issues.” Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.1995) (citing Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994)). Accordingly, “affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. B. Analysis A plaintiff seeking to withstand a defendant’s motion for summary judgment on a claim of retaliatory discharge under § 15(a)(3) may proceed by the now-familiar burden-shifting approach set out in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). The first step of the McDonnell Douglas analysis is the establishment of the prima facie case: (1) the plaintiff has engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. See Larsen v. Club Corp. of Am., 855 F.Supp. 247, 253 (N.D.Ill.1994) (citing Rennie v. Dalton, 3 F.3d 1100, 1109 (7th Cir.1993)). In this case, Wittenberg has clearly satisfied the second" }, { "docid": "5446910", "title": "", "text": "judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Initially, the moving party bears the burden of showing that the record contains no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must present more than a “metaphysical doubt as to the material facts” to survive summary judgment. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Additionally, “mere conclusory” allegations are not enough. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir.1998). The non-moving party will not survive summary judgment if she cannot present sufficient evidence to support each element of her case on which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Courts do not make “credibility determinations nor choose between competing inferences” at the summary judgment stage. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.1993). Further, the court must view the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In addition, pursuant to Northern District of Illinois Local Rule 56.1, the parties must support all disputed facts with “specific references to ... parts of the record....” The Seventh Circuit has articulated that courts need not “scour the record” in an attempt to locate the relevant information supporting the 56.1 claims. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) II. Title VII In Count I, Plaintiffs charge Defendants with sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title" }, { "docid": "22142581", "title": "", "text": "King was not a qualified individual with a disability under the ADA and that she failed to present sufficient evidence that the termination of her employment was in retaliation for the exercise of her rights under the FMLA. Accordingly, the District Court granted PTG’s motion for summary judgment on King’s ADA and FMLA claims. On appeal, King challenges only the District Court’s grant of summary judgment on the FMLA claim. Analysis A. Summary Judgment Standard We review a district court’s grant of summary judgment de novo, drawing our own conclusions of law and fact from the record before us. See Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 181 (7th Cir.1995). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We must bear in mind that “[t]his standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). B. The FMLA Claim 1. The FMLA establishes two categories of broad protections for employees. First, the FMLA contains prescriptive protections that are expressed as substantive statutory rights. The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition as defined by" } ]

[ { "docid": "23285658", "title": "", "text": "modifying existing compacts would not protect the tribes from other potential effects of the declaration that the gaming conducted by the tribes pursuant to their compacts is illegal. The third factor does not favor the plaintiffs. If they retain the judgment as it was entered by the district court, they have achieved what they sought but the tribes’ protectible interests are impaired. See Dawavendeiva, 276 F.3d at 1162. If the non-renewal clause is removed from the injunction, the relief is not adequate, as we have just pointed out in our discussion of the second factor. The fourth factor would ordinarily favor the plaintiffs; there is no adequate remedy available to them if this case is dismissed for lack of joinder of indispensable parties. But this result is a common consequence of sovereign immunity, and the tribes’ interest in maintaining their sovereign immunity outweighs the plaintiffs’ interest in litigating their claims. See Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1102-03 (9th Cir.1994); Clinton, 180 F.3d at 1090. Indeed, some courts have held that sovereign immunity forecloses in favor of tribes the entire balancing process under Rule 19(b), but we have continued to follow the four-factor process even with immune tribes. See Chehalis, 928 F.2d at 1499. With regard to the fourth factor, however, we have regularly held that the tribal interest in immunity overcomes the lack of an alternative remedy or forum for the plaintiffs. See, e.g., Dawavendewa, 276 F.3d at 1162. We conclude, therefore, that “in equity and good conscience” this action cannot proceed. Fed.R.Civ.P. 19(b). The Public Rights Exception We reject the plaintiffs’ contention that this case falls within the “public rights” exception to the requirement of joinder of otherwise indispensable parties. The plaintiffs rely on Conner v. Burford, 848 F.2d 1441 (9th Cir.1988), in which we held that environmental groups could challenge the manner in which environmental statutes had been applied to oil and gas leases without joining some of the lessees. We stated that “[t]he appellees’ litigation against the government does not purport to adjudicate the rights of current lessees; it" } ]

[ { "docid": "5553735", "title": "", "text": "hiring preference policy or comply with the lease requiring it.” By similar logic, we have elsewhere found that tribes are necessary parties to actions that might have the result of directly undermining authority they would otherwise exercise. See Pit River Home v. United States, 30 F.3d 1088, 1092 (9th Cir.1994) (Pit River Tribal Council was a necessary party in suit challenging its designation by the Secretary of Interior as the beneficiary of reservation property); Confederated Tribes of Chehalis Reservation v. Lujan, 928 F.2d 1496, 1497 (9th Cir.1991) (Quinault Nation was a necessary party in suit challenging the United States’ continued recognition of the Nation as sole governing authority of the Quinault Indian Reservation). Following these cases, we conclude that the Navajo nation is a necessary party under Rule 19(a). 3. Feasibility of Joinder We turn next to the issue of whether it is feasible to join the Navajo Nation. Peabody does not contest that the court could exercise personal jurisdiction over the Nation. Rather, Peabody argues that the district court lacked jurisdiction because of the Nation’s sovereign immunity. In many cases in which we have found that an Indian tribe is an indispensable party, tribal sovereign immunity has required dismissal of the case. See, e.g., Dawavendewa II, 276 F.3d at 1163; American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1027 (9th Cir.2002). By contrast, in a suit brought by the EEOC, the Nation’s tribal sovereign immunity does not pose a bar to its joinder. Tribal sovereign immunity does not “act as a shield against the United States,” even when Congress has not specifically abrogated tribal immunity. United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir.1987). Because the EEOC is an agency of the United States, “tribal sovereign immunity does not apply in suits brought by the EEOC.” Dawavendewa II, 276 F.3d at 1162-63; Karuk, 260 F.3d at 1075. Peabody argues, however, that the district court lacked the authority to join the Nation because the EEOC cannot state a claim against an" }, { "docid": "3343112", "title": "", "text": "immunity does not apply in a suit brought by the United States. Moreover, recently, in EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1075 (9th Cir.2001), we held that because no principle of law “differentiates a federal agency such as the EEOC from ‘the United States itself,’ ” tribal sovereign immunity does not apply in suits brought by the EEOC. At the eleventh hour, the EEOC moved to intervene in an effort to salvage Dawav-endewa’s case and possibly combine it with other pending litigation. Although we denied that motion, we note that nothing precludes Dawavendewa from refiling his suit in conjunction with the EEOC. Recognizing the resources and aggravation consumed in relitigating, however, we determine that factor four remains in equipoise. Balancing these four factors, we find the Nation is indispensable, and in “equity and good conscience,” this action should not proceed in its absence. Dawavendewa is not entitled to attorney’s fees. CONCLUSION We affirm the district court’s decision to dismiss Dawavendewa’s complaint for failure to join the Nation as an indispensable party. AFFIRMED. . In pertinent part 42 U.S.C. § 2000e-2 reads: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . The lease provision at issue reads as follows: Lessees agree to give preference in employment to qualified local Navajos, it being understood that “local Navajos” means members of the Navajo Tribe living on land within the jurisdiction of the Navajo Tribe. All unskilled labor shall be employed from “local Navajos,” if available, providing that applicants for employment as unskilled laborers meet the general employment qualifications established by Lessees. Qualified semi-skilled and skilled labor shall be recruited and employed from among \"local Navajos.” In the event sufficient qualified unskilled, semi-skilled and skilled local Navajo labor is not available, or the quality of work of available skilled or semi-skilled workmen is not acceptable to Lessees, Lessees" }, { "docid": "5553734", "title": "", "text": "F.3d at 1156, the Nation is a signatory to lease provisions that the plaintiff challenges under Title VII. The EEOC seeks declaratory, injunctive, and monetary relief. If the EEOC is victorious in its suit against Peabody, monetary damages for the charging parties can be awarded without the Nation’s participation. But declaratory and injunctive relief could be incomplete unless the Nation is bound by res judicata. The judgment will not bind the Navajo Nation in the sense that it will directly order the Nation to perform, or refrain from performing, certain acts. But it will preclude the Nation from bringing a collateral challenge to the judgment. If the EEOC is victorious in this suit but the Nation has not been joined, the Nation could possibly initiate further action to enforce the employment preference against Peabody, even though that preference would have been held illegal in this litigation. Peabody would then be, like the defendant in Dawavendewa II, 276 F.3d at 1156, “between the proverbial rock and a hard place — comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it.” By similar logic, we have elsewhere found that tribes are necessary parties to actions that might have the result of directly undermining authority they would otherwise exercise. See Pit River Home v. United States, 30 F.3d 1088, 1092 (9th Cir.1994) (Pit River Tribal Council was a necessary party in suit challenging its designation by the Secretary of Interior as the beneficiary of reservation property); Confederated Tribes of Chehalis Reservation v. Lujan, 928 F.2d 1496, 1497 (9th Cir.1991) (Quinault Nation was a necessary party in suit challenging the United States’ continued recognition of the Nation as sole governing authority of the Quinault Indian Reservation). Following these cases, we conclude that the Navajo nation is a necessary party under Rule 19(a). 3. Feasibility of Joinder We turn next to the issue of whether it is feasible to join the Navajo Nation. Peabody does not contest that the court could exercise personal jurisdiction over the Nation. Rather, Peabody argues that the district court lacked jurisdiction because of the" }, { "docid": "23424083", "title": "", "text": "conduct of the administrative process....” Id. We reasoned, “The absent tribes would not be prejudiced because all of the tribes have an equal interest in an administrative process that is lawful.” Id. The present case is distinguishable. Kes-coli’s action could affect the Navajo Nation’s and the Hopi Tribe’s interests in their lease agreements and the ability to obtain the bargained-for royalties and jobs. Kescoli’s action would directly affect the parties’ settlement agreement and indirectly affect the parties’ lease agreements by challenging the conditions under which Peabody may mine at the Kayenta complex. Her action is not limited to merely requiring the OSM to comply with procedural obligations in the future. 3. Sovereign Immunity Because the Navajo Nation and the Hopi Tribe are necessary parties, the next question is whether they can be joined in the action. Pit, 30 F.3d at 1099. The sovereign immunity of the Navajo Nation and the Hopi Tribe, conceded by the parties, prevents them from being joined involuntarily unless they waive their immunity. McClendon v. United States, 885 F.2d 627, 629 (9th Cir.1989). Any waiver must be unequivocal and may not be implied. Id. Contrary to Kescoli’s implication, the Navajo Nation and the Hopi Tribe did not waive their immunity by intervening in the administrative proceedings before the ALJ and the IBLA. Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459-60 (9th Cir.1994). “[A] tribe’s participation in an administrative proceeding does not waive tribal immunity in an action filed by another party seeking review of the agency’s decision.” Id. at 1460; see also McClendon, 885 F.2d at 629-31 (“a tribe’s waiver of sovereign immunity [by initiation of a lawsuit] may be limited to the issues necessary to decide the action”). The district court, therefore, did not err in determining the Navajo Nation and the Hopi Tribe could not feasibly be joined in the action. 4. Indispensable Party The Navajo Nation and the Hopi Tribe are indispensable parties if, “in equity and good conscience,” the district court should not allow the action to proceed in their absence. Fed.R.Civ.P. 19(b); Moronga Band, 34 F.3d at 907. To make" }, { "docid": "9286774", "title": "", "text": "Teva and Akorn filed similar petitions. The Board instituted IPR and scheduled a consolidated oral hearing for September 15, 2017. Before the hearing, Allergan and the Tribe entered into an agreement Mylan alleges was intended to protect the patents from review. On September 8, 2017, a patent assignment transferring the Restasis patents from Allergan to the Tribe was recorded with the USPTO. The Tribe moved to terminate the IPRs, arguing it is entitled to assert tribal sovereign immunity, and Allergan moved to withdraw. The Board denied both motions. Allergan and the Tribe appeal. We have jurisdiction pursuant 28 U.S.C. § 1295(a)(4)(A). Board decisions must be set aside if they are \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" 5 U.S.C. § 706. ANALYSIS As \"domestic dependent nations,\" Indian tribes possess \"inherent sovereign immunity,\" and suits against them are generally barred \"absent a clear waiver by the tribe or congressional abrogation.\" Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla. , 498 U.S. 505, 509 (1991). This immunity derives from the common law, Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and it does not extend to actions brought by the federal government, see, e.g. , E.E.O.C. v. Karuk Tribe Hous. Auth. , 260 F.3d 1071, 1075 (9th Cir. 2001) ; United States v. Red Lake Band of Chippewa Indians , 827 F.2d 380, 383 (8th Cir. 1987). Generally, immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action. See, e.g. , Pauma v. NLRB , 888 F.3d 1066 (9th Cir. 2018) (holding the NLRB could adjudicate unfair labor charges brought by the Board against a tribally-owned business operating on tribal land); Karuk Tribe Hous. Auth. , 260 F.3d at 1074 (holding tribe not immune in EEOC enforcement action); cf. Fed. Power Comm'n v. Tuscarora Indian Nation , 362 U.S. 99, 122, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (holding that tribal lands were subject to takings by the Federal Power Commission)." }, { "docid": "491297", "title": "", "text": "to hold that “Indian tribes may, in certain circumstances, consent to suit by participation in litigation.” McClendon, 885 F.2d at 630-31 n. 2. We cannot interpret Oregon, however, to hold that participation in administrative proceedings waives immunity for subsequent court proceedings. See Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 420 (9th Cir.1989) (noting that Oregon tests the “outer limits” of admonition against implied waivers). Whether an Indian tribe’s participation in administrative proceedings waives tribal immunity in an action seeking 'review of the agency’s determination is thus a question of first impression. See Stock West Corp. v. Lujan, 982 F.2d 1389, 1398 (9th Cir.1993) (raised but not decided). In addressing this issue, we note first that tribal immunity is generally not asserted in administrative proceedings because tribes cannot impose sovereign immunity to bar the federal government from exercising its trust obligations. See Indians of the Quinault Reservation v. Commissioner of Indian Affairs, 9 IBIA 63 (1981) (IBIA will adjudicate cases without the Quinaults’ participation even when the tribe has significant interests). Thus, tribal sovereignty does not extend to prevent the federal government from exercising its superior sovereign powers. See United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir.1986); see also United States v. Red Lake Band of Chippe wa Indians, 827 F.2d 380, 382 (8th Cir.1987) (tribes may not interpose sovereign immunity against the United States), cert. denied, 485 U.S. 935, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988); United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986) (United States may override tribal sovereign immunity), cert. denied, 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987). It is therefore not surprising that courts have upheld the assertion of tribal immunity in court proceedings following a tribe’s participation in agency proceedings. See, e.g., Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765 (D.C.Cir.1986). We conclude that a tribes’s participation in an administrative proceeding does not waive tribal immunity in an action filed by another party seeking review of the agency’s decision. The Quinaults could not assert immunity to" }, { "docid": "3343107", "title": "", "text": "attempt to circumvent the Nation’s sovereign immunity by joining tribal officials in its stead. Finally, Dawavendewa recasts his complaint to allege that the Nation exceeded its sovereign jurisdiction in executing the lease and enacting the NPEA because those actions are attempts by the Nation to legislate the conduct of non-Indians within the reservation. See Strate v. A-1 Contractors, 520 U.S. 438 (1997); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). In pressing this argument, he correctly notes that “tribal jurisdiction over the conduct of nonmembers exists only in very limited circumstances” and that “the inherent sovereign powers of an Indian Tribe do not extend to the activities of non-members of the Tribe.” From this solid precipice, however, Da-wavendewa plummets to the assertion that the Nation cannot assert tribal sovereign immunity against Dawavendewa’s claims. We disagree. Indeed, with this conclusion, Dawavendewa appears to confuse the fundamental principles of tribal sovereign authority and tribal sovereign immunity. The cases Dawavendewa cites address only the extent to which a tribe may exercise jurisdiction over those who are nonmembers, ie., tribal sovereign authority. Those cases do not address the concept at issue here — our authority and the extent of our jurisdiction over Indian Tribes, ie., tribal sovereign immunity. In the case at hand, the only issue before us is whether the Nation enjoys sovereign immunity from suit. We hold that it does, and accordingly, it cannot be joined nor can tribal officials be joined in its stead. Ill Indispensable Party The Nation is a necessary party that cannot be joined due to its tribal sovereign immunity. Accordingly, we consider whether the Nation is indispensable such that Dawavendewa’s action must be dismissed. See Fed.R.Civ.P. 19(b). A party is indispensable if in “equity and good conscience,” the court should not allow the action to proceed in its absence. Id.; Kescoli, 101 F.3d at 1310. To make this determination, we must balance four factors: (1) the prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; (3) whether an adequate remedy, even if" }, { "docid": "7795001", "title": "", "text": "We must first determine whether the Council has sovereign immunity which prevents it from being joined in this action. If the Council has sovereign immunity, we must next decide whether we are required to dismiss this case because the Council is an indispensable party. Based on the following analysis, we conclude that the Council has sovereign immunity and is an indispensable party, and we therefore dismiss this case. a. Sovereign Immunity Federally recognized Indian tribes enjoy sovereign immunity from suit. As the Supreme Court has stated, “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Ok., 498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991) (although tribe consents to court’s jurisdiction to claims brought by it, that consent does not waive sovereign immunity for counterclaims brought against it) (citations omitted); see also Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989) (“Absent congressional or tribal consent to suit, state and federal courts have no jurisdiction over Indian tribes; only consent gives the courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants.”). “Sovereign immunity involves a right which courts have no choice, in the absence of a waiver, but to recognize.” California v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir.1979). The Association does not contest that the Council is the federally recognized governing body of the Pit River Indian Tribe, and hence enjoys sovereign immunity. Thus, unless the Council has waived its sovereign immunity and expressly consented to suit, the Council cannot be joined as a party to this action. The Association contends that the Council waived its sovereign immunity by filing suit regarding the ownership of the Ranch. On June 20, 1986, the Council filed a complaint for injunctive relief and damages against the United States, certain federal officials, and Forrest. On March 1, 1988, the Council" }, { "docid": "3343101", "title": "", "text": "reservation). Dawavendewa cites no cases considering Title VII’s application on tribal lands generally, or explaining why an ex- eeption does not apply in this case. He certainly points to no authority, and we find none, construing the 1868 Navajo Treaty as it pertains to Title VII. Without the aide of supporting precedent, we reject Dawavendewa’s invitation to ignore the Nation’s plausible legal defenses. Accordingly, we determine that SRP does face the substantial possibility of multiple or inconsistent obligations if the Nation is not a party to this suit. Thus, we conclude that in addition to being necessary as contemplated by Rule 19(a)(1) and 19(a)(2)®, the Nation is a necessary party as defined by Rule 19(a)(2)(h). II Tribal Sovereign Immunity Having determined that the Nation is thrice over a necessary party to the instant litigation, we next consider whether it can feasibly be joined as a party. We hold it cannot. Federally recognized Indian tribes enjoy sovereign immunity from suit, Pit River Home, 30 F.3d at 1100, and may not be sued absent an express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). In this case, the Nation has not waived its tribal sovereign immunity and Congress has not clearly abrogated tribal sovereign immunity in Title VII cases. Dawavendewa, undaunted, argues that tribal sovereign immunity does not exist because the suit could be sustained against tribal officials. We disagree. To support this proposition, Dawavendewa relies heavily on Burlington N.R.R. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir.1991), and Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir.1996). In Blackfeet Tribe, we extended the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to tribal officials. In particular, we held that, in cases seeking merely prospective relief, sovereign immunity does not extend to tribal officials acting pursuant to an unconstitutional statute. See Blackfeet Tribe, 924 F.2d at 901. In Aspaas, the Navajo Supreme Court determined that the Arizona Public Service" }, { "docid": "3343108", "title": "", "text": "over those who are nonmembers, ie., tribal sovereign authority. Those cases do not address the concept at issue here — our authority and the extent of our jurisdiction over Indian Tribes, ie., tribal sovereign immunity. In the case at hand, the only issue before us is whether the Nation enjoys sovereign immunity from suit. We hold that it does, and accordingly, it cannot be joined nor can tribal officials be joined in its stead. Ill Indispensable Party The Nation is a necessary party that cannot be joined due to its tribal sovereign immunity. Accordingly, we consider whether the Nation is indispensable such that Dawavendewa’s action must be dismissed. See Fed.R.Civ.P. 19(b). A party is indispensable if in “equity and good conscience,” the court should not allow the action to proceed in its absence. Id.; Kescoli, 101 F.3d at 1310. To make this determination, we must balance four factors: (1) the prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; (3) whether an adequate remedy, even if not complete, can be awarded without the absent party; and (4) whether there exists an alternative forum. See Kescoli, 101 F.3d at 1310. If no alternative forum exists, we should be “extra cautious” before dismissing the suit. Makah, 910 F.2d at 560. If the necessary party enjoys sovereign immunity from suit, some courts have noted that there may be very little need for balancing Rule 19(b) factors because immunity itself may be viewed as “one of those interests ‘compelling by themselves,’ ” which requires dismissing the suit. Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 777 (D.C.Cir.1986) (quoting 3A James W. Moore et al., Moore’s Federal Practice ¶ 19.15 (1984)); see also Enterprise Mgmt. Consultants, Inc. v. United States, 883 F.2d 890, 894 (10th Cir.1989). Cognizant of these out-of-circuit decisions, the Ninth Circuit has, nonetheless, consistently applied the four part balancing test to determine whether Indian tribes are indispensable pax-ties. See Confederated Tribes, 928 F.2d at 1499. A.Prejudice — The prejudice to the Nation stems from the same impairment of legal interests that makes" }, { "docid": "3343111", "title": "", "text": "been presented, that SRP and the Nation face potential prejudice. This factor weighs in favor of dismissal. B. Shaping Relief — No relief mitigates the prejudice. Any decision mollifying Dawavendewa would prejudice the Nation in its contract with SRP and its governance of the tribe. This factor weighs in favor of dismissal. C. Adequate Relief — No partial relief is adequate. Any type of injunctive relief necessarily results in the above-described prejudice to SRP and the Nation. An award of damages would not resolve SRP’s potential liability to other plaintiffs or address the Nation’s contention that Title VII does not apply on the reservation. D. Alternative Forum — Finally, we note that in Lomayaktewa, Confederated Tribe, Shermoen, Pit River Home, Qui-leute Indian Tribe, Kescoli, and Clinton, we determined that the plaintiff would be without an alternative forum to air his grievances. Nevertheless, in each case, we determined that the absent Indian Tribe was indispensable and dismissed the case. Dawavendewa, on the other hand, may have a viable alternative forum in which to seek redress. Sovereign immunity does not apply in a suit brought by the United States. Moreover, recently, in EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1075 (9th Cir.2001), we held that because no principle of law “differentiates a federal agency such as the EEOC from ‘the United States itself,’ ” tribal sovereign immunity does not apply in suits brought by the EEOC. At the eleventh hour, the EEOC moved to intervene in an effort to salvage Dawav-endewa’s case and possibly combine it with other pending litigation. Although we denied that motion, we note that nothing precludes Dawavendewa from refiling his suit in conjunction with the EEOC. Recognizing the resources and aggravation consumed in relitigating, however, we determine that factor four remains in equipoise. Balancing these four factors, we find the Nation is indispensable, and in “equity and good conscience,” this action should not proceed in its absence. Dawavendewa is not entitled to attorney’s fees. CONCLUSION We affirm the district court’s decision to dismiss Dawavendewa’s complaint for failure to join the Nation as an indispensable party. AFFIRMED." }, { "docid": "491298", "title": "", "text": "Thus, tribal sovereignty does not extend to prevent the federal government from exercising its superior sovereign powers. See United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir.1986); see also United States v. Red Lake Band of Chippe wa Indians, 827 F.2d 380, 382 (8th Cir.1987) (tribes may not interpose sovereign immunity against the United States), cert. denied, 485 U.S. 935, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988); United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986) (United States may override tribal sovereign immunity), cert. denied, 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987). It is therefore not surprising that courts have upheld the assertion of tribal immunity in court proceedings following a tribe’s participation in agency proceedings. See, e.g., Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765 (D.C.Cir.1986). We conclude that a tribes’s participation in an administrative proceeding does not waive tribal immunity in an action filed by another party seeking review of the agency’s decision. The Quinaults could not assert immunity to prevent the agency’s decision regarding the escheat of the property interests on the Quinault reservation. Moreover, the Quinaults’ voluntary participation before the IBIA is not the express and unequivocal waiver of tribal immunity that we require in this circuit. See McClendon, 885 F.2d at 629. Accordingly, we hold that the Quinaults’ participation in the administrative proceedings did not waive the tribe’s immunity in the subsequent court action. C. Indispensable Party Rule 19(b) provides a four-part test to determine whether a party is indispensable to an action. Confederated Tribes, 928 F.2d at 1499. The district court is directed to balance the following factors: (1) prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; (3) whether an adequate remedy, even if not complete, can be awarded without the absent party; and (4) whether there exists an alternative forum. Id. We have noted, however, that when the necessary party is immune from suit, there may be “very little need for balancing Rule 19(b) factors because immunity itself may be" }, { "docid": "3343102", "title": "", "text": "unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). In this case, the Nation has not waived its tribal sovereign immunity and Congress has not clearly abrogated tribal sovereign immunity in Title VII cases. Dawavendewa, undaunted, argues that tribal sovereign immunity does not exist because the suit could be sustained against tribal officials. We disagree. To support this proposition, Dawavendewa relies heavily on Burlington N.R.R. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir.1991), and Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir.1996). In Blackfeet Tribe, we extended the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to tribal officials. In particular, we held that, in cases seeking merely prospective relief, sovereign immunity does not extend to tribal officials acting pursuant to an unconstitutional statute. See Blackfeet Tribe, 924 F.2d at 901. In Aspaas, the Navajo Supreme Court determined that the Arizona Public Service Company’s (“APS”) anti-nepotism policy violated Navajo employment discrimination law. APS then filed suit in federal district court seeking injunctive relief against the Navajo Nation, its executive agencies, Navajo Supreme Court Justices, and tribal officials challenging their authority to regulate APS’s employment practices. The defendants argued that they enjoyed sovereign immunity from suit. We held that the Nation and its executive agencies were immune from suit, but reaffirming our decision in Blackfeet Tribe, we held that sovereign immunity did not bar prospective relief against the individual tribal officials acting beyond the scope of their authority in violation of federal law. See Aspaas, 77 F.3d at 1133-34. Dawavendewa’s argument strikes us as an attempted end run around tribal sovereign immunity. Neither Blackfeet Tribe nor Aspaas insinuated that a plaintiff may circumvent the barrier of sovereign immunity by merely substituting tribal officials in lieu of the Indian Tribe. Rather, the doctrine announced in Blackfeet Tribe and reaffirmed in Aspaas permitted suits against officials allegedly acting in contravention of federal law. That doctrine is inapplicable to Dawav-endewa’s suit. Unlike" }, { "docid": "5553736", "title": "", "text": "Nation’s sovereign immunity. In many cases in which we have found that an Indian tribe is an indispensable party, tribal sovereign immunity has required dismissal of the case. See, e.g., Dawavendewa II, 276 F.3d at 1163; American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1027 (9th Cir.2002). By contrast, in a suit brought by the EEOC, the Nation’s tribal sovereign immunity does not pose a bar to its joinder. Tribal sovereign immunity does not “act as a shield against the United States,” even when Congress has not specifically abrogated tribal immunity. United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir.1987). Because the EEOC is an agency of the United States, “tribal sovereign immunity does not apply in suits brought by the EEOC.” Dawavendewa II, 276 F.3d at 1162-63; Karuk, 260 F.3d at 1075. Peabody argues, however, that the district court lacked the authority to join the Nation because the EEOC cannot state a claim against an Indian tribe under Title VII. The parties agree that the EEOC cannot sue an Indian tribe under Title VII regarding the tribe’s own employment practices. Under § 2000e(b), an Indian tribe is specifically exempt from the definition of “employer,” and thus Title VII does not apply to Indian tribes when they act as employers. In addition, Title VII limits the EEOC’s authority to proceed against “a respondent which is a government, governmental agency, or political subdivision.” 42 U.S.C. § 2000e-5(f)(1). In the case of a governmental respondent, if the EEOC fails to resolve the matter by informal means, the EEOC “shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent.” Id. However, a plaintiffs inability to state a direct cause of action against an absentee does not prevent the absentee’s joinder under Rule 19. In Beverly Hills Federal Savings and Loan Association v. Webb, 406 F.2d 1275, 1279-80 (9th Cir.1969), we stated that “a person may be joined as a party [under" }, { "docid": "5553725", "title": "", "text": "failure to join the Navajo Nation as an indispensable party under Federal Rule of Civil Procedure 19(b). In Dawavendewa II, 276 F.3d at 1153, we agreed with the district court that the Navajo Nation was an indispensable party. We held that “[a]s a signatory to the lease ... the Nation is a necessary party that cannot be joined because it enjoys tribal sovereign immunity.” Id. We noted when balancing the factors to determine whether the Nation was an indispensable party that the plaintiff may have a viable alternative forum in which to seek redress. Sovereign immunity does not apply in a suit brought by the United States. Moreover, recently, in EEOC v. Karuk Tribe Hous [ing] Auth[ority], 260 F.3d 1071, 1075 (9th Cir.2001), we held that because no principle of law ‘differentiates a federal agency such as the EEOC from the United States itself,’ tribal sovereign immunity does not apply in suits brought by the EEOC. Id. at 1162-63. When the EEOC moved “[a]t the eleventh hour” to intervene, we denied the motion. We observed, however, “that nothing precludes Dawavendewa from refiling his suit in conjunction with the EEOC,” Id. at 1163. In June 2002,'the EEOC brought the present action, alleging intertribal discrimination as in Dawavendewa I and Dawav-endewa II. In February 2002, Peabody moved for summary judgment under Federal Rule of Civil Procedure 56 and for dismissal of the action under Federal Rules of Civil Procedure- 12(b)(7) and 12(b)(1). Peabody neither admitted nor denied that it had discriminated against non-Navajo Native Americans in violation of Title VII. Instead, Peabody asserted that Rule 19 required dismissal because the Navajo Nation was a necessary and indispensable party. Peabody also asserted that the issue of the legality of this lease provision was a nonjusticiable political question, on the theory that because the DOI had approved the mining leases, the court would have to make an “initial policy choice” between the positions of the DOI and the EEOC. .The district court held that it was not feasible to join the Navajo Nation, and that the Nation was not only a necessary but also" }, { "docid": "5553724", "title": "", "text": "(9th Cir.2004) (holding that the court lacked jurisdiction to enforce arbitration settlement agreement about lease royalty rates); see also Clinton v. Babbitt, 180 F.3d 1081, 1083-86 (9th Cir.1999) (describing the lengthy dispute between Navajo and Hopi Nations over joint use land in Arizona); Navajo Nation v. Peabody Holding Co., 209 F.Supp.2d 269, 275-76 (D.D.C.2002) (describing history of amendments to the leases in a RICO suit by the tribe against Peabody). Navajo employment preference provisions also have been the subject of prior litigation. See Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1163 (9th Cir.2002) (“Dawavendewa II”); Dawavendewa v. Salt River Agr. Imp. & Power Dist., 154 F.3d 1117, 1124 (9th Cir.1998) (“Dawavendewa I”). In Dawavendewa I, we interpreted the Indian preference exception of Title VII, § 2000e-2(i), to permit discrimination in favor of Indians living on or near a reservation, but not to permit discrimination against Indians belonging to other tribes. Id. at 1124. On remand to the district court, the private contractor defendant moved to dismiss the case for failure to join the Navajo Nation as an indispensable party under Federal Rule of Civil Procedure 19(b). In Dawavendewa II, 276 F.3d at 1153, we agreed with the district court that the Navajo Nation was an indispensable party. We held that “[a]s a signatory to the lease ... the Nation is a necessary party that cannot be joined because it enjoys tribal sovereign immunity.” Id. We noted when balancing the factors to determine whether the Nation was an indispensable party that the plaintiff may have a viable alternative forum in which to seek redress. Sovereign immunity does not apply in a suit brought by the United States. Moreover, recently, in EEOC v. Karuk Tribe Hous [ing] Auth[ority], 260 F.3d 1071, 1075 (9th Cir.2001), we held that because no principle of law ‘differentiates a federal agency such as the EEOC from the United States itself,’ tribal sovereign immunity does not apply in suits brought by the EEOC. Id. at 1162-63. When the EEOC moved “[a]t the eleventh hour” to intervene, we denied the motion. We observed," }, { "docid": "3343106", "title": "", "text": "SRP for discriminating against him on the basis of his national origin. Dawavendewa alleges that SRP utilizes a Navajo hiring preference policy pursuant to a lease agreement with the Nation. His complaint specifies no action by tribal officials performed in contravention of constitutional or federal statutory law. Perhaps that fact is self-evident, demonstrated by Dawavendewa’s failure to name any tribal official as a party to the original action. Only when faced with the possible dismissal of his suit did Dawavendewa seek to join tribal officials. Unlike the ruling of the Navajo Supreme Court condemning APS’s antinepotism policy in Aspaas, here no Nation official has heretofore acted to enforce the objectionable lease provision. Undoubtedly many actions of a sovereign are performed by individuals. Yet even if Dawavendewa alleged some wrongdoing on the part of Nation officials, his real claim is against the Nation itself. At bottom, the lease at issue is between SRP and the Nation, and the relief Dawavende-wa seeks would operate against the Nation as signatory to the lease. As such, we reject Dawavendewa’s attempt to circumvent the Nation’s sovereign immunity by joining tribal officials in its stead. Finally, Dawavendewa recasts his complaint to allege that the Nation exceeded its sovereign jurisdiction in executing the lease and enacting the NPEA because those actions are attempts by the Nation to legislate the conduct of non-Indians within the reservation. See Strate v. A-1 Contractors, 520 U.S. 438 (1997); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). In pressing this argument, he correctly notes that “tribal jurisdiction over the conduct of nonmembers exists only in very limited circumstances” and that “the inherent sovereign powers of an Indian Tribe do not extend to the activities of non-members of the Tribe.” From this solid precipice, however, Da-wavendewa plummets to the assertion that the Nation cannot assert tribal sovereign immunity against Dawavendewa’s claims. We disagree. Indeed, with this conclusion, Dawavendewa appears to confuse the fundamental principles of tribal sovereign authority and tribal sovereign immunity. The cases Dawavendewa cites address only the extent to which a tribe may exercise jurisdiction" }, { "docid": "3343100", "title": "", "text": "rights in similar situations. Thus, Dawavendewa continues, the Nation’s present assertion of these defenses is “baseless, specious, and violative of Rule 11.” For support, however, Dawavendewa cites no relevant cases. Instead, he refers us to cases which merely reaffirm the general rule that statutes of general applicability apply to Native Americans on tribal land. See, e.g., Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683 (9th Cir.1991) (applying ERISA to a lumber mill on reservation land); Donovan v. Coeur d’Alene, 751 F.2d 1113 (9th Cir.1985) (applying OSHA standards to a tribal farm). Dawavendewa neglects to explain that these cases also outline specific exceptions to the general rule—situations in which statutes of general applicability do not apply to Native Americans on tribal lands. See Coeur d’Alene, 751 F.2d at 1116. In appropriate situations, federal law yields out of respect for treaty rights or the federal policy fostering tribal self-governance. See Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709, 711-12 (10th Cir.1982) (finding 1868 Navajo Treaty prohibited application of OSHA on Navajo reservation). Dawavendewa cites no cases considering Title VII’s application on tribal lands generally, or explaining why an ex- eeption does not apply in this case. He certainly points to no authority, and we find none, construing the 1868 Navajo Treaty as it pertains to Title VII. Without the aide of supporting precedent, we reject Dawavendewa’s invitation to ignore the Nation’s plausible legal defenses. Accordingly, we determine that SRP does face the substantial possibility of multiple or inconsistent obligations if the Nation is not a party to this suit. Thus, we conclude that in addition to being necessary as contemplated by Rule 19(a)(1) and 19(a)(2)®, the Nation is a necessary party as defined by Rule 19(a)(2)(h). II Tribal Sovereign Immunity Having determined that the Nation is thrice over a necessary party to the instant litigation, we next consider whether it can feasibly be joined as a party. We hold it cannot. Federally recognized Indian tribes enjoy sovereign immunity from suit, Pit River Home, 30 F.3d at 1100, and may not be sued absent an express and" }, { "docid": "5553727", "title": "", "text": "an indispensable party. In the alternative, it found the legality of the Navajo employment preference in the lease to be a nonjusticiable political question. The district court dismissed the- entire action, including the EEOC’s record-keeping claim. The EEOC timely appealed. We reverse and remand for further proceedings. a II. Discussion A. Joining the Navajo Nation Under Rule 19 Rule 19 governs compulsory party join-der in federal district courts. The district court held that it was not feasible to join the Navajo Nation because, under Title VII, the EEOC cannot directly sue the Nation. See 42 U.S.C. § 2000e(b)(1) (exempting Indian tribes from the statutory definition of “employer”); see also Dawavendewa II, 276 F.3d at 1159 n. 9 (observing that “pursuant to § 2000e(b), Indian tribes are specifically exempt from the requirements of Title VII”). Although the district court decided the issue on a motion for summary judgment, we construe the motion as one to dismiss for failure to join an indispensable party under Rule 12(b)(7). See Dredge Corp. v. Penny, 338 F.2d 456, 463-64 (9th Cir.1964) (explaining that dismissal for failure to join a party must be decided on a motion to dismiss, not summary judgment). We review de novo the district court’s legal conclusion that it is not feasible to join the Navajo Nation. United States v. Bowen, 172 F.3d 682, 688 (9th Cir.1999) (explaining that although “[gjenerally, we review a district court’s decision regarding joinder for abuse of discretion!,] .... we review legal conclusions underlying that decision de novo”) (internal citation and quotation marks omitted). We hold that the Navajo Nation is a necessary party under- Rule 19. We hold, further, that where the EEOC asserts a cause of action against Peabody and seeks no affirmative relief against the Nation, joinder of the Nation under Rule 19 is not prevented by the fact that the EEOC cannot state a cause of action against it. Because the EEOC is an agency of the United States, the Nation cannot object to joinder based on sovereign immunity, as we noted in Dawavendewa II, 276 F.3d at 1162-63. We therefore hold that" }, { "docid": "3343103", "title": "", "text": "Company’s (“APS”) anti-nepotism policy violated Navajo employment discrimination law. APS then filed suit in federal district court seeking injunctive relief against the Navajo Nation, its executive agencies, Navajo Supreme Court Justices, and tribal officials challenging their authority to regulate APS’s employment practices. The defendants argued that they enjoyed sovereign immunity from suit. We held that the Nation and its executive agencies were immune from suit, but reaffirming our decision in Blackfeet Tribe, we held that sovereign immunity did not bar prospective relief against the individual tribal officials acting beyond the scope of their authority in violation of federal law. See Aspaas, 77 F.3d at 1133-34. Dawavendewa’s argument strikes us as an attempted end run around tribal sovereign immunity. Neither Blackfeet Tribe nor Aspaas insinuated that a plaintiff may circumvent the barrier of sovereign immunity by merely substituting tribal officials in lieu of the Indian Tribe. Rather, the doctrine announced in Blackfeet Tribe and reaffirmed in Aspaas permitted suits against officials allegedly acting in contravention of federal law. That doctrine is inapplicable to Dawav-endewa’s suit. Unlike the complaints in Blackfeet Tribe or Aspaas, Dawavendewa’s complaint never mentions tribal officials. Neither does it allege that tribal officials acted in contravention of constitutional or federal statutory law, nor has it named any tribal officials as parties to this litigation. Indeed, when pressed at oral argument, Dawavendewa could not even specify which tribal officials he would join, if permitted to do so. In Shermoen, we addressed a similar ploy hatched by a plaintiff attempting to circumvent tribal sovereign immunity. 982 F.2d at 1319. In that case, the plaintiffs sued the United States, challenging the constitutionality of the Hoopa-Yurok Settlement Act. Id. at 1314. The district court granted the United States’ motion to dismiss for failure of the plaintiffs to join the Hoopa Valley and Yurok Tribes as indispensable parties. Then “in an attempt to circumvent the Hoopa Valley Tribe’s sovereign immunity,” relying on Blackfeet Tribe, plaintiffs sought to file a second amended complaint, naming individual members of the Hoopa Valley Tribe’s governing council as defendants. Id. at 1317. In rejecting plaintiffs attempt to prolong" } ]

[ { "docid": "22247221", "title": "", "text": "severe relative to most other defendants in this Court who do not have the vulnerability, the appearance, the sexual orientation that this defendant presents. ... [The guidelines sentence] I would regard as being nothing less than draconian, and ... I’m familiar with adminis trative procedures and writs of habeas corpus. They would provide this defendant with little solace. It is from this sentence that the government appeals. We affirm. II DISCUSSION Congress promulgated the Sentencing Guidelines to avoid “unwarranted sentencing disparities among defendants.” 28 U.S.C. § 991(b)(1)(B) (1982 & Supp. V 1987). In attempting to eliminate disparity Congress enumerated factors the sentencing judge should consider in determining the appropriate sentencing range. See 18 U.S.C. § 3553(a) (1988). It recognized that there would be circumstances in which departure from the Guidelines’ range would be necessary, and granted statutory authority to depart from the Guidelines’ range when “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines_” Id. § 3553(b). The Commission did not provide a comprehensive list of those factors a sentencing judge should consider in departing from the applicable Guidelines’ range, listing instead only a few specific factors, see, e.g., United States Sentencing Commission Guidelines, §§ 5K2.1-.15, p.s. at 5.43-.47 (1989), (U.S.S.G.), leaving the application of other factors to the discretion of the sentencing judge, id. § 5K2.0, p.s. at 5.42-43. The Commission also designated several factors that it deemed would not be “ordinarily relevant” in imposing sentence. See, e.g., id. §§ 5H1.1-.6, p.s. at 5.35-.36. The government has raised several arguments in urging reversal of the sentence. It contends that extreme vulnerability of criminal defendants is not a factor permitting departure under § 3553(b), that the district court improperly relied upon factors the Commission designated as not “ordinarily” relevant at sentencing, that the court’s basis of departure contravenes the sentencing philosophy adopted by Congress in enacting the Guidelines, and that the district court circumvented available administrative remedies in attempting to ameliorate the conditions of incarceration. None of these" } ]

[ { "docid": "18636554", "title": "", "text": "previously. Because those cases did not face the issue we face here \"[their] pronouncements are non-binding.” Shoupe II, 988 F.2d at 446 n. 9. . The government also argues that interpreting § 4A1.3 to permit downward departures will make surplusage of § 5K2.0, and of 18 U.S.C. § 3553(b), which it implements. This argument, however, is not convincing. We are only concerned here with the ability to depart from the prescribed offense level where the career offender provision has improperly enhanced the offense level. In any other situation, our limited holding would not apply and a court may have to look to § 5K2.0 in order to make a downward departure. That issue, however, is not before us, and we, therefore, express no opinion on it. ALITO, Circuit Judge, dissenting. I cannot join the court’s opinion because I believe that it is inconsistent with our two prior decisions in this case, United States v. Shoupe, 929 F.2d 116 (3d Cir.1991) (“Shoupe I”), and United States v. Shoupe, 988 F.2d 440 (3d Cir.1993) (“Shoupe II”). When the district court first sentenced the defendant in 1990, it granted a downward departure based on the following factors: the defendant’s age and immaturity at the time of the first offenses counted for career-offender purposes, the time between his prior crimes, his alleged cooperation with the authorities in connection with those offenses, and his family responsibilities. The government appealed, and in Shoupe I, we reversed. We noted that under 18 U.S.C. § 3553(b) a sentencing court may not grant a departure “ ‘unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guideline that should result in a sentence different from that described.’ ” 929 F.2d at 119 (quoting 18 U.S.C. § 3553(b)). Concluding that all of the factors cited by the district court had been “ ‘adequately taken into consideration by the Sentencing Commission in formulating’ the career offender guideline,” 929 F.2d at 119-20 (quoting 18 U.S.C. § 3553(b)), we held that the" }, { "docid": "23108993", "title": "", "text": "them and for the reasons given. Uca A. 48-49. II A. SCOPE OF REVIEW The governing provision of the Sentencing Reform Act states: The court shall impose a sentence of the kind and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C.A. § 3553(b) (West 1985 & Supp. 1988). This provision is mandatory. No departure is permitted on the basis of circumstances adequately taken into consideration by the Sentencing Commission. In determining whether section 3553(b) permits a departure because the Commission did not adequately take designated circumstances into account, our review is plenary. United States v. Ryan, 866 F.2d 604 (3d Cir.1989). The appropriate method of interpretation of the Guidelines for the exercise of our review is suggested by the Sentencing Commission, which devotes an entire section to departure. See Sentencing Guidelines, Chap. 5, Part K-Departures, at 5.35-.40 (1987). Policy Statement § 5K2.0 lists areas the Commission felt “cannot, by their very nature, be comprehensively listed and analyzed in advance.” After reit erating the standard for departure set in 18 U.S.C. § 3553(b) and stating that “[t]he controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing,” id. at § 5K2.0, the Guidelines limit court discretion: “Where the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a factor listed in this part, departure from the guideline is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction.” Id. Thus, the Guidelines, commentaries and policy statements clearly indicate that departures should be rare. The interpretive posture suggested by the Sentencing Commission is consistent with the materials comprising the legislative history of the Sentencing Reform Act. Those materials repeatedly state that departures are to be the exception, not" }, { "docid": "23031213", "title": "", "text": "in mind the fact that people frequently engage in criminal conduct for profit.” Id. at 1361-62. For similar reasons, we have held that sentencing judges may not depart on the basis of the defendant’s need for psychiatric treatment, or because of the possibility of deportation. United States v. Doering, 909 F.2d 392, 395 (9th Cir. 1990) (because Congress directed the Sentencing Commission to consider \"rehabilitation” and providing defendants with \"needed ... medical care, or other correctional treatment,” the need for psychiatric assistance was not a factor overlooked by the Commission); United States v. Ceja-Hernandez, 895 F.2d 544, 545 (9th Cir. 1990) (\"When setting the offense level for entry after deportation, the Sentencing Commission would certainly have been aware of the practice of promptly deporting aliens after they serve such sentences.”). These decisions follow directly from the sentencing statute, which authorizes Guidelines departures only when the case involves atypical circumstances. 18 U.S.C. § 3553(b) (circumstance must be one that was \"not adequately taken into consideration.”); see also U.S.S.G. § lA4(b), p.s. (judge should depart from Guidelines only in rare, atypical cases); § 5K2.0, p.s. (discussing grounds for departure). The other two cases cited by the majority also do not establish that we have the authority to limit the information available to sentencing judges. In United States v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir.1990), we held that the possibility of deportation could not be the basis for a downward departure, because deportation \"does not speak to the offense in question, nor does it speak to the offender’s character.\" Id. at 737. This exclusion of irrelevant information finds support both in the sentencing statute, and in the Guidelines. See U.S.S.G. § 1B1.4 (directing courts to consider evidence relevant to the \"background, character and conduct of the defendant”); 18 U.S.C. § 3661 (same); see also 28 U.S.C. § 994(d) & (e) (listing factors irrelevant to sentencing). Finally, in United States v. Watt, 910 F.2d 587, 591-92 (9th Cir.1990), we held that a judge must determine whether a defendant has accepted responsibility for his offense without considering the defendant’s pre-plea conduct. We stressed that this" }, { "docid": "6264018", "title": "", "text": "B. Tapia-Garcia’s Request for a Downward Departure in Sentencing is Without Merit Tapia-Garcia pleads that the district court depart downward from the Sentencing Guidelines, pursuant to its authority under the Sentencing Reform Act, 18 U.S.C. § 3553(b), and Sentencing Guideline § 5K2.0. (Pet. at 14.) Tapia-Garcia argues that, because he will ultimately be deported after he has completed his sentence, and because deportation is a severe penalty, the Court should grant a downward departure. (Pet. at 14.) Tapia-Garcia is correct that “both the Guidelines and the Sentencing Reform Act allow ‘the sentencing court [to] impose a sentence outside the range established by the applicable guideline^ if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” ’ ” United States v. Restrepo, 999 F.2d 640, 643 (2d Cir.), cert. denied, 510 U.S. 954, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993). The Second Circuit has held, however, that “[deportation alone does not constitute an extraordinary consequence that would justify a downward departure.” United States v. Tejeda, 146 F.3d 84, 88 (2d Cir.1998) (citing United States v. Restrepo, 999 at 647); see also, e.g., United States v. Marin-Castaneda, 134 F.3d 551, 554-55 (3d Cir.1998) (no basis for downward departure based on defendant’s willingness to be deported where such departure not requested by the government, and defendant had no plausible basis to contest deportation) (citing cases). Since Tapia-Garcia’s claim that he is entitled to a downward departure is based only on the fact that he ultimately will be deported, it should be denied. Moreover, in light of his status as a “one-man crime wave,” and Judge Baer’s comments at sentencing, the Court doubts that even if he had the discretion to do so, Judge Baer would sentence Tapia-Garcia to anything less than the Guidelines maximum. CONCLUSION For the reasons set forth above, I recommend that Tapia-Garcia’s habeas corpus petition pursuant to 28 U.S.C. § 2255 be denied as procedurally barred and/or on the merits. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION" }, { "docid": "4010298", "title": "", "text": "The court articulated two separate grounds to support its decision to impose a sentence outside the applicable guideline. First, it concluded that a downward departure was required because Gonzalez’s case presented circumstances that the Commission had not adequately considered in setting the sentencing range for career offenders. Second, the court departed because it believed that sentencing Gonzalez as a career offender would be grossly excessive and unfair. We consider these in turn. The Commission intends sentencing courts to treat each guideline as a carving out a “heartland” type ease, that is “a set of typical cases embodying that conduct that each guideline describes.” Guidelines Manual at 1.6; United States v. Crawford, 883 F.2d 963, 964-65 (11th Cir.1989); United States v. Ryan, 866 F.2d 604, 606-07 (3rd Cir.1989). A sentencing court may impose a sentence outside the applicable guideline only if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines....” 18 U.S.C. § 3553(b) (West Supp.1989). Stated otherwise, departure is reserved for “unusual” cases where there is something atypical about the defendant or the circumstances surrounding the commission of the crime which significantly differ from the normal or “heartland” conduct in the commission of the crime. United States v. Williams, 891 F.2d 962, 964 (1st Cir.1989). The appropriateness of departure, therefore, hinges upon a determination of what circumstances the Commission considered in formulating the guideline in question. See United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). Whether this case presents a circumstance that the Commission did not adequately consider in formulating the guideline is a question of law, hence, we exercise our plenary powers of review. Ryan, 866 F.2d at 610. Gonzalez argues that in adopting its definition of a crime of violence and incorporating it in the career offender guideline, the Commission did not adequately consider the distinction between crimes that involve the actual use of force and result in injury, and those that involve nothing more than the threat of force and do not result" }, { "docid": "23181654", "title": "", "text": "had no authority to depart and, in the alternative, that if it had authority it declined to depart in the exercise of its discretion. The judge stated that “to make it clear, the Court believes that she has no discretion to depart downward on the argument counsel has made.” The district court then sentenced Mendoza to 210 months incarceration, the low end of the applicable guideline range of 210 to 265 months. The court indicated that lack of control over, or knowledge of, purity of the methamphetamine was a proper factor to consider in selecting the low end of the Guideline range, but that the court would have sentenced the defendant to the low end anyway “so I am not here choosing the 210 because of the purity argument.” This appeal followed. ANALYSIS We have jurisdiction to review the district court’s conclusion that it lacked the legal authority under the Guidelines to depart downward. United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991). We review the district court’s decision regarding departure under a unitary abuse-of-discretion standard. Koon v. United States, — U.S. -, ---, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996). The Sentencing Eeform Act of 1984 provides that a departure from the Guidelines is appropriate when “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). The district court concluded that it could not depart downward on the ground of lack of control over, or knowledge of, the purity of the methamphetamine because the Guidelines already took purity into account in establishing the offense level. The Supreme Court’s opinion in Koon makes clear, however, that section 3553(b), in conjunction with the Guidelines, does not restrict the power of the district courts that severely. 18 U.S.C. § 3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission, it should consider “only the sentencing guidelines, policy statements, and official commentary" }, { "docid": "14951035", "title": "", "text": "error the court’s conclusion that such a factor is present. See United States v. Haynes, 985 F.2d 65, 68 (2d Cir.1993). A court may depart from a guideline range when it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). The Guidelines offer a list of factors that might warrant departure, see U.S.S.G. § 5K2.1-16, but district courts have discretion to consider additional factors, see U.S.S.G. § 5K2.0; see also Haynes, 985 F.2d at 68. In departing, however, the district court must state “the specific reason for the imposition of a sentence different from that described” by the Guidelines. 18 U.S.C. § 3553(c)(2); see also United States v. Butler, 954 F.2d 114, 121 (2d Cir.1992) (“Congress has expressed its intent, in no uncertain terms, that when a sentencing court departs from the applicable guideline range, that departure must be justified by specific reasons.”). The district court explained that it departed because “unique circumstances ... existed] in factoring in the prior conviction of an aggravated felony,” “the prior aggravated felony conviction overrepresent[ed defendant’s] past criminal behavior,” there was “a questionable basis for [defendant’s] conviction,” and Amaya-Benitez’s five year sentence “ended up being a two year sentence.” We find these explanations too vague and general to constitute the sort of specific reasons that are required to justify a departure. For example, the district court never clarified why the conviction was questionable, or why the offense level mandated by the Guidelines “overrepresented” the seriousness of Amaya-Benitez’s criminal history. Nor did the district court relate the circumstances upon which it was relying. We are therefore unable to determine whether they were “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” We conclude that the district court erred in failing to articulate in specific terms the reasons for its downward departure. While the district court offered no specific reason for departing from the guidelines, its explanation suggested that the departure was influenced by its perception that the" }, { "docid": "18636545", "title": "", "text": "be affirmed because § 4A1.3 allows a sentencing court to apply the career offender provision flexibly, id. Not surprisingly, Shoupe sought a downward departure on remand, claiming his career offender status overstated his criminal history and citing the same mitigating factors the district court had considered at his first sentencing. Shoupe II, 988 F.2d at 444. The district court interpreted our decision in Shoupe I as precluding it from considering those factors in a motion for downward departure. Therefore, it declined to depart from the prescribed sentencing range and sentenced Shoupe to a term of 168 months, the lowest sentence under the applicable range. Id. On Shoupe’s second appeal the government argued that the district court properly refused to depart from the guideline range because 18 U.S.C. § 3553(b) requires a court to impose a sentence within the range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines-” 18 U.S.C. § 3553(b) (1988); see also U.S.S.G. § 5K2.0, p.s. (implementing 18 U.S.C. § 3553). We reversed and remanded, holding a court need not find that the Sentencing Commission failed to consider a factor in order to make a downward departure under § 4A1.3, id. at 447, since “the statutory authority for promulgation of § 4A1.3 lies not in 18 U.S.C. § 3553(b), but in the basic provision of the Sentencing Reform Act that gives the Sentencing Commission the authority ... to take into account, where relevant, the defendant’s criminal background,” id. at 446. On remand Shoupe asked the district court to make a downward departure under § 4A1.3 and sentence him without applying the career offender provision. The district court declined, believing our decisions in Shoupe I and Shoupe II, taken together, indicated that a downward departure was permissible only in the criminal history category, but not in the offense level. Therefore, the court reduced Shoupe’s criminal history level from VI to III and, despite its belief that the reduced sentence “still over represents the offense in" }, { "docid": "23610527", "title": "", "text": "successfully challenged his § 924(c) conviction pursuant to Bailey.” Gordils, 117 F.3d at 99, 102. Specifically, we held that “the district court’s power extends not just to the conviction attacked by the defendant but to ‘an aggregate, indivisible term of imprisonment ....’” Id. (quoting United States v. Binford, 108 F.3d 723, 728 (7th Cir.)), cert. denied, — U.S. —, 117 S.Ct. 2530, 138 L.Ed.2d 1029. Because Gordils and Rodriquez make clear that the district court had jurisdiction to resentence Reyes on his conviction for conspiracy to distribute heroin, we affirm the district court’s ruling on this question. II. Downward Departure for Post-Conviction Rehabilitation Reyes argues that the district court was wrong in concluding that it had no legal authority to consider post-conviction rehabilitation in prison as a basis for downward departure. “[W]e review due novo the legal issue of ‘[wjhether a particular factor is a permissible ground for departure.’ ” United States v. Williams, 37 F.3d 82, 85 (2d Cir. 1994) (quoting United States v. Mickens, 926 F.2d 1323, 1332 (2d Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992)); see also Koon v. United States, — U.S. —, —, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (“[Wjhether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.”). The Sentencing Reform Act of 1984 (the “Act”) invites the sentencing court to consider departure from the range provided by the Sentencing Guidelines if it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); see also U.S.S.G. Ch. 1 Pt. A, intro, comment. (4)(b). Furthermore, the Guidelines themselves make clear that a court should consider in every case, not only in rare circumstances, whether a departure is appropriate. See U.S.S.G. § lBl.l(i). In making this inquiry, the sentencing court begins by considering whether some aspect of the case “take[sj it outside" }, { "docid": "6264017", "title": "", "text": "General discretion to initiate deportation proceedings for non-violent offenders who are incarcerated, it does not give an incarcerated alien a right to be deported nor any cause of action to require the Attorney General to exercise her discretion. It is not surprising that the Attorney General apparently has determined not to seek to exercise discretion for early deportation for an alien — Tapia-Garcia— described by the courts as a “one-man crime wave.” Tapia-Garcia is not entitled to be deported before he completes his sentence. This aspect of his habeas claim is frivolous. See, e.g., Thye v. United States, 109 F.3d 127, 128-29 (2d Cir.1997) (under former § 1252(h)(2)(A), the predecessor to § 1231(a)(4), alien does not have private right of action to compel the Attor ney General to deport alien prior to completion of prison term or even to exercise her discretion (citing cases)); United States v. Marin-Castaneda, 134 F.3d 551, 556 (3d Cir.), cert. denied, — U.S. -, 118 S.Ct. 1855, 140 L.Ed.2d 1103 (1998); United States v. Bedoya-Tabarda, 950 F.Supp. 612, 613 (S.D.N.Y.1997). B. Tapia-Garcia’s Request for a Downward Departure in Sentencing is Without Merit Tapia-Garcia pleads that the district court depart downward from the Sentencing Guidelines, pursuant to its authority under the Sentencing Reform Act, 18 U.S.C. § 3553(b), and Sentencing Guideline § 5K2.0. (Pet. at 14.) Tapia-Garcia argues that, because he will ultimately be deported after he has completed his sentence, and because deportation is a severe penalty, the Court should grant a downward departure. (Pet. at 14.) Tapia-Garcia is correct that “both the Guidelines and the Sentencing Reform Act allow ‘the sentencing court [to] impose a sentence outside the range established by the applicable guideline^ if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” ’ ” United States v. Restrepo, 999 F.2d 640, 643 (2d Cir.), cert. denied, 510 U.S. 954, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993). The Second Circuit has held, however, that “[deportation alone does not constitute an extraordinary" }, { "docid": "18644730", "title": "", "text": "of confinement can ever justify a downward departure presents a threshold question of law that we decide de novo. United States v. Williams, 980 F.2d 1463, 1466 (D.C.Cir.1992). * * * Sentencing courts are authorized to make downward departures in order to adjust for “aggravating or mitigating circumstance[s]” not adequately taken into account by the Sentencing Commission in the promulgation of its guidelines: (b) Application of guidelines in imposing a sentence. The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. 18 U.S.C. § 3553(b) (emphasis added). The first question is whether § 3553(b) reaches offender characteristics not related to culpability, an issue we left open in United States v. Mason, 966 F.2d 1488, 1495-96 (D.C.Cir.1992). We believe that although the controlling statutes are ambiguous on the point, the Sentencing Commission has answered it affirmatively, and that that answer is an entirely reasonable reading of the statutes. See United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (courts defer to reasonable interpretations by Commission); cf. Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1119-20, 117 L.Ed.2d 341 (1992). There seems no doubt that “aggravating or mitigating circumstances” may encompass characteristics of the offender as well as of the crime. Indeed, Congress directed the Sentencing Commission “to consider whether the following matters, among others, with respect to a defendant, have any relevance” to the appropriate sentence, and then enumerated 11 items, ten of which are offender characteristics such as age, physical condition, family ties, and criminal history. 28 U.S.C. § 994(d). The Commission has con sidered the listed items, stating its conclusions as Policy Statements in Chapter 5, Part H, of" }, { "docid": "18644749", "title": "", "text": "sentence, compare Dissent at 661, would seem to make little difference. It is hard to believe that a factor relevant to establishment of a guidelines sentence is not either a mitigating or aggravating circumstance. If so, it may be considered as a basis for departure so long as \"not adequately taken into consideration by the Sentencing Commission\". 18 U.S.C. § 3553(b). . Restrepo was followed without further explanation in United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir.1993), and in United States v. Nnanna, 7 F.3d 420, 422 (5th Cir.1993). United States v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir.1990), rejected a defendant’s unexplained claim that his ’status as a deportable alien was grounds for a downward departure. In that context, the court indeed observed that the mere fact of deportability did not render his crime serious or speak to his character. Id. at 737. Thus, Larct and its sequelae appear to be the only cases expressly addressing the issue of departures for circumstances that accidentally lead to an increase in the objective severity of the defendant’s conditions of incarceration. Cf. Dissent at 668. SENTELLE, Circuit Judge, dissenting: In 1984, concerned that the then-existing sentencing system “had two ‘unjustified]’ and ‘shameful’ consequences,” Mistretta v. United States, 488 U.S. 361, 366, 109 S.Ct. 647, 652, 102 L.Ed.2d 714 (1989) (quoting S.Rep. No. 98-225 (1983)) (“Report”), Congress enacted the Sentencing Reform Act of 1984, currently codified at 18 U.S.C. § 3551 et seq. (1988) (“the Act”). The first of those unjustified and shameful consequences “was the great variation among sentences imposed by different judges upon similarly situated offenders.” Mistretta, 488 U.S. at 366, 109 S.Ct. at 652. Viewing that consequence as “a serious impediment to an evenhanded and effective operation of the criminal justice system,” Congress created the Sentencing Commission and instructed and empowered that Commission to create a guideline system designed to “reduc[e] sentencing disparities while retaining the flexibility needed to adjust for unanticipated factors arising in a particular case.” Id. at 366-67, 109 S.Ct. at 652 (citing Report at 78-79, 62). Today’s decision rejects the congressional goal of the Sentencing" }, { "docid": "22299700", "title": "", "text": "available for sale that day as an act that was “part of the same course of conduct or common scheme” as the offense of conviction, in furtherance of that scheme, and reasonably foreseeable. See United States v. Schaper, 903 F.2d 891 (2d Cir.1990); United States v. Copeland, 902 F.2d 1046 (2d Cir.1990); United States v. Paulino, 873 F.2d 23 (2d Cir.1989). As Copeland makes clear, the relevant conduct guideline applies, in appropriate circumstances, to quantities of narcotics possessed by co-defendants. II. Downward Departure The Government’s cross-appeal primarily challenges the lawfulness of Judge Muka-sey’s decision to make a downward departure to the extent that the departure rested on a perceived disparity between the guideline ranges applicable to Joyner and Valentin and those applicable to their co-ventur-ers, Rodriguez and Gonzalez. A “disparity” usually results because offenders in similar circumstances are given significantly different sentences, see Mistretta v. United States, 488 U.S. 361, 366, 109 S.Ct. 647, 651, 102 L.Ed.2d 714 (1989), and reducing “unwarranted” disparities of this sort was a principal objective that Congress required the Sentencing Commission and sentencing judges to achieve, see 28 U.S.C. § 991(b)(1)(B) (1988); 18 U.S.C. § 3553(a)(6) (1988). However, the term may also be applied, as Judge Mukasey used it in this case, to the imposition of similar sentences upon offenders in significantly different circumstances. See also L. Tribe, American Constitutional Law § 16-1 at 993-94 (1978) (noting similar dual aspects of Equal Protection Clause). In this case, the sentencing judge was concerned that sentencing without a downward departure would create a disparity of the latter type. The departure standard — existence of “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” 18 U.S.C. § 3553(b) (1988)— does not confer on sentencing judges “unbounded” discretion to depart from applicable guideline ranges, United States v. Colon, 905 F.2d 580, 585 (2d Cir.1990), and we review de novo the legal issue of whether a factor was permissibly relied on as grounds for a departure, United States v. Barone, 913 F.2d 46, 50" }, { "docid": "8055486", "title": "", "text": "do not. The sentence is reversed, and the cause remanded to the District Court with instructions to enter a sentence within the Guideline range. . See, e.g., United States v. Galloway, 951 F.2d 64 (5th Cir.1992); United States v. Turner, 928 F.2d 956 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Cyrus, 890 F.2d 1245 (D.C.Cir.1989); United States v. Malone, 886 F.2d 1162 (9th Cir.1989); United States v. Solomon, 848 F.2d 156 (11th Cir.1988). BRIGHT, Senior Circuit Judge, dissenting. In United States v. Wint, 974 F.2d 961 (8th Cir.1992), this court (Judges Wollman, Bright and Ross) affirmed Judge Rosen-baum’s upward departure from the Sentencing Guidelines. In that case, Judge Rosenbaum departed upward for a valid reason: the Sentencing Commission had not considered the severity of the offender’s conduct in calculating the offender’s sentencing range. In the instant case, the majority reverses Judge Rosenbaum for a six-month downward departure from the guideline range for perfectly good reasons. Under 18 U.S.C. section 3553(b) (1988), a district court has the authority to depart from the guideline range if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Judge Rosenbaum identified two mitigating circumstances warranting departure. First, the Commission failed to consider the impact of the mandatory minimum sentences created by Congress in drafting the Guidelines. Congress mandated a minimum sentence of sixty months for Latti-more’s crime, possessing with intent to distribute more than five grams of crack. 21 U.S.C. § 841(b)(1)(B)(iii) (1988). Obviously, the Sentencing Commission was aware of the statutory minimum sentences when it drafted the applicable Guidelines for Latti-more’s offense, as indicated ante, at 964-965. However, the Commission failed to honor Congress’ express intent from the language of the law when the Commission issued those Guidelines. The guideline range for an offender convicted of possessing five grams of crack is sixty-three to seventy-eight months. Thus, although Congress intended the minimum" }, { "docid": "2774292", "title": "", "text": "Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG. Concurring opinion filed by Circuit Judge HARRY T. EDWARDS. Dissenting opinion filed by Circuit Judge SILBERMAN. RUTH BADER GINSBURG, Circuit Judge: In sentencing Kelvin Harrington for narcotics offenses, the district court departed downward from the sentencing range indicated by the United States Sentencing Guidelines (“guidelines,” cited as “U.S.S.G.”). Harrington’s potential for rehabilitation from drug addiction, the trial judge held, was a mitigating circumstance not adequately considered by the Sentencing Commission in promulgating the guidelines. See United States v. Harrington, 741 F.Supp. 968 (D.D.C.1990). The government appeals the sentence. We conclude that Harrington’s post-offense rehabilitation is the type of conduct properly considered in determining whether he is eligible for a reduction in sentence under U.S.S.G. § 3E1.1 (acceptance of personal responsibility for one’s criminal conduct). We therefore vacate the sentence imposed by the district court and remand for resen-tencing consistent with this opinion. I. Background A. Review Standards Both the Sentencing Reform Act of 1984 and the guidelines authorize judicial departure from the guidelines sentencing range if the sentencing court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b); see U.S.S.G. Ch. 1, Pt. A, 4(b) (introductory policy statement on departures); id. § 5K2.0 (policy statement on grounds for departures). In deciding whether the Sentencing Commission adequately accounted for a particular circumstance, “the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). The determination whether a particular factor is an appropriate ground for departure “involves a question of statutory interpretation” over which this court exercises “plenary review.” United States v. Burns, 893 F.2d 1343, 1345 (D.C.Cir.1990), rev’d on other grounds, — U.S. —, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Once a factor is established as “a legally permissible basis for departure,” however, we accord “broad deference to the district court’s judgment as to the" }, { "docid": "10556493", "title": "", "text": "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” ... An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the ease from the “heartland” eases covered by the guidelines in a way that is important to the statutory purposes of sentencing. U.S.S.G. § 5K2.0, p.s. The Guidelines state, in addition, that “[fjamily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6, p.s. We have read § 5H1.6 to mean that when a sentencing court determines the circumstances related to family ties and relationships are extraordinary, the Guidelines do not bar it from considering them as a basis for a downward departure. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); see also United States v. Londono, 76 F.3d 33, 36 (2d Cir.1996) (“[T]his Court and other courts of appeals have recognized that a defendant’s familial responsibilities may present such ‘extraordinary circumstances’ that a downward departure in sentencing is necessary and permissible.”); United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) (“Section 5H1.6’s phrasing confirms the Commission’s understanding that ordinary family circumstances do not justify departure, but extraordinary family circumstances may.”). II Standard of Review for Such Departures This case illustrates the tension that exists between the Guidelines’ somewhat rigid sentencing grid and the authority of a sentencing court to move outside those strictures in order to impose an individualized sentence in a given case. A brief examination of the sentencing law helps rationalize when such a departure will be upheld on appeal. The Sentencing Reform Act of 1984, 98 Stat.1988, 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, had as one of its major purposes the avoidance of unwarranted" }, { "docid": "10565169", "title": "", "text": "582 (1993). D. Downward Departure The government cross appeals from the district court’s downward departure from the applicable Guidelines ranges, pursuant to 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, p.s. The district court departed downward on the ground that the 100:1 ratio between cocaine powder and cocaine base in the Guidelines has disparately impacted African Americans, finding that “[t]his disparate impact was not contemplated by Congress nor was it considered by the Sentencing Commission in developing the guideline ranges for users of crack cocaine.” United States v. Majied, No. 8:CR91-00038(02), 1993 WL 315987 (D.Neb. July 29, 1993) (Judgment Including Sentence Under the Sentencing Reform Act, Statement of Reasons for Departure). A sentencing court may impose a sentence that is not within the applicable Guidelines range if the court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). Whether the circumstance upon which the district court relies to depart is of a kind or degree that may appropriately be relied upon to justify departure is a question of law that we review de novo. United States v. Passmore, 984 F.2d 933, 936 (8th Cir.1993) (quoting United States v. Thomas, 914 F.2d 139, 143-44 (8th Cir.1990)). A downward departure is not justified simply because the Sentencing Commission did not take a factor into consideration. “[A]n asserted ground for departure must be not only one that the Commission did not adequately consider, but also one for which a sentence outside the guidelines ‘should result.’ ” United States v. Bynum, 3 F.3d 769, 774 (4th Cir.1993) (citing 18 U.S.C. § 3553(b)), cert. denied, - U.S. -, 114 S.Ct. 1105, 127 L.Ed.2d 416 (1994). In United States v. Lattimore, the district court noted the potentially racially disparate impact of the cocaine-base Guidelines in explaining the grounds for its downward departure. 974 F.2d 971, 973 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). In response," }, { "docid": "18814859", "title": "", "text": "by the Sentencing Commissioners when they formulated guideline section 3E1.1, “Acceptance of Responsibility.” The only issue presented on appeal is “[wjhether the district court erred when, in addition to granting [a] reduction for acceptance of responsibility, it departed from the range prescribed by the Sentencing Guidelines on a finding of defendant’s extraordinary post-arrest efforts at drug rehabilitation.” II. Analysis The Sentencing Reform Act allows a sentencing court to depart from the guidelines if “the [sentencing] court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C.A. § 3553(b) (West Supp.1993); see also U.S.S.G. § 5K2.0, p.s. (1991). In reviewing a district court’s decision to depart from the sentencing range established under the guidelines, this court applies a three-step analysis. First, we “ ‘determine de novo whether the circumstances [cited by the district court] admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure.’ ” United States v. Bowser, 941 F.2d 1019, 1024 (10th Cir.1991) (quoting United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990)); see 18 U.S.C.A. § 3553(b) (West Supp.1993). Second, we review the district court’s factual findings supporting departure and determine whether they were clearly erroneous. United States v. Pena, 930 F.2d 1486, 1494 (10th Cir.1991); see 18 U.S.C.A. § 3742(e) (West Supp.1993). Third, if the departure was justified, we review the degree of departure to determine whether it was reasonable. Id.; see 18 U.S.C.A. § 3742(e)(3) (West Supp.1993). A. Rehabilitation adequately considered in Guidelines. The government contends that post-offense, drug rehabilitation is specifically considered in the guidelines and therefore, the district court relied upon improper grounds for departure. This is an issue which has split the circuits. A majority of circuits apparently hold that drug rehabilitation is not grounds for departure, thus removing a sentencing court’s discretion on the matter. United States v. Desormeaux, 952 F.2d 182, 185-86 (8th Cir.1991); United States v. Bruder, 945 F.2d 167, 172-73" }, { "docid": "22282525", "title": "", "text": "indictment, and (4) the offense was a single act of aberrant behav ior. The court expressly stated that none of these factors taken alone persuaded it-to depart downward but that the aggregate effect of the four factors warranted the departure. II. ANALYSIS The United States Sentencing Commission Guidelines, enacted pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq., (Supp. IV 1986), and 28 U.S.C. §§ 991-98 (Supp. IV 1988), require a district court to impose a sentence of the kind and within the range established by the Sentencing Commission for the applicable category of offense and defendant unless the court finds an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission in formulating the Guidelines. 18 U.S.C. § 3553(b) (Supp. 1989). See also United States v. Jordan, 890 F.2d 968, 970 (7th Cir.1989); United States v. Perez, 871 F.2d 45, 47-48 (6th Cir.1989). In determining whether a circumstance was adequately considered by the Commission, a court can consider only the Guidelines themselves, along with its policy statements and the official commentary of the Commission. Id. The Guidelines list a number of factors that may never be considered as either aggravating or mitigating circumstances — race, sex, national origin, creed, religion, and socioeconomic status. Other factors, such as age, physical condition, education, and family and community ties are generally irrelevant except in an extraordinary case. §§ 5H1.1-10. The sentencing court must state the reasons for a departure from the applicable sentencing range, and the sentence imposed must be reasonable in light of the articulated reasons. 18 U.S.C. § 3742(e)(2). In this appeal, the government contends that the district court’s reasons for departing are either not relevant to a decision to depart or are not supported by the record. The scope of our review is set forth in 18 U.S.C. § 3742(e). We review a district court’s departure from the Guideline’s sentencing range to determine whether it was reasonable in light of the factors dictated by the Guidelines and the district court’s explanations for its departure. 18" }, { "docid": "6510127", "title": "", "text": "and that applicable to a defendant convicted in an unrelated gun trafficking case. In addition, the district court cited Arjoon’s return of a portion of the stolen property as a “circumstance” that was not adequately considered by the Sentencing Commission in formulating the Guidelines. The government contends that neither of the grounds relied on by the district court in its downward departure warranted a “result in a sentence different from that described.” 18 U.S.C. § 3553(b). We agree. A departure from the Sentencing Guidelines is warranted where there exists “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0; United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991). We review de novo the district court’s determination that particular factors, such as the partial return of stolen property and the disparity of sentences imposed upon unrelated defendants for unrelated crimes, were not adequately considered by the Sentencing Commission so as to warrant a departure. See, e.g., Joyner, 924 F.2d at 459; United States v. Jagmohan, 909 F.2d 61, 64 (2d Cir.1990). The district court’s first reason for departure was that Arjoon’s sentence seemed too harsh when compared to the sentence imposed upon a defendant for an unrelated gun trafficking offense. One of the principal purposes of the Sentencing Commission was to establish policies and practices that avoided “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct ...” 28 U.S.C. § 991(b)(1)(B); see also Joyner, 924 F.2d at 460. A system was therefore established to meet this objective by prescribing appropriate sentencing ranges based on factors concerning an offense and an offender. As Joyner made clear, while “[a]n applicable guideline range may seem harsh ..., it is the same range applicable throughout the country for all offenders with the same combination of offense conduct and prior record.” Id. Mindful of this objective of sentencing conformity, we held in Joyner that a defendant “should not be favored, compared to all" } ]

[ { "docid": "7635797", "title": "", "text": "measure, either direct or indirect, of a school system’s movement away from segregation is deeply problematic.” (citing Jenkins, 515 U.S. at 101, 115 S.Ct. at 2055; People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir.1997); Coalition to Save Our Children, 90 F.3d at 776-78)); Keyes, 902 F.Supp. at 1282 (“ ‘[TJhere is nothing in the law which does or could require equality in the results of educational services. ... No school policy and no court order can assure any particular level of success in public schools any more than in any other aspect of life.’ ” (quoting Keyes v. School Dist. No. 1, 609 F.Supp. 1491, 1515, 1498 (D.Colo.1985))); Flax, 725 F.Supp. at 330 (“Poor achievement scores are often an incidence of poverty and family environment, matters not remediable by a school desegregation plan.”), aff'd, 915 F.2d 155 (5th Cir.1990); but see Jenkins v. Missouri, 122 F.3d 588, 597-99 (8th Cir.1997) (affirming an order to partially remedy an achievement gap because the district court found that a portion of the gap was attributable to segregation). i. The Requirements of Swann The issue of student achievement disparities was addressed during the early stages of Swann, when Judge McMillan observed a radal disparity in test scores and surmised that “segregation in Mecklenburg County has produced its inevitable results in the retarded educational achievement and capacity of segregated school children.” 306 F.Supp. at 1296-97; see Swann, 300 F.Supp. at 1368-69; Swann, 318 F.Supp. at 791. While experts in Swann agreed that poverty and culture played a role in the underachievement of blacks, 300 F.Supp. at 1368-69, the Court did not conclusively identify the cause of the disparity. Stated the Court: “Until unlawful segregation is eliminated, it is idle to speculate whether some of this gap can be charged to racial differences or to ‘socio-economic-cultural’ lag.” Swann, 306 F.Supp. at 1309. The Court never ordered CMS to adopt specific academic programs to remedy the achievement gap but, rather, assumed that racial balance in schools would provide “hopeful relief.” Swann, 306 F.Supp. at 1297. In fact, the Court found that" } ]

[ { "docid": "15396997", "title": "", "text": "with the use of the study. The study itself shows only differential achievement levels by race; it does not purport to take the next step and give reasons for that gap. Accepting arguendo the study’s conclusion of a racial disparity, the study fails to show that the disparity was caused by pre-1986 segregation in Yonkers, as opposed to, for example, generalized “societal discrimination.” Wessmann, 160 F.3d at 803-04; see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1971) (“The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage.”). The State introduced unrefuted evidence at the 1997 trial showing that the racial disparities in Yonkers were no greater (and in many instances smaller) than those present in comparable New York school districts, districts in which there has never been a finding of de jure segregation. The district court rejected those comparisons on the ground that de jure segregation may have existed in the control districts even if it escaped adjudication. See Yonkers VI, 984 F.Supp. 687, 690-91 (S.D.N.Y.1997). That is of course possible. But the district court’s approach would invalidate reality-checking comparisons with any and all other districts. The burden of proof comes into play at this juncture. If (as is the case) the Yonkers Board cannot demonstrate salient differences between its experience with changing school demographics and the experience of other school districts, there is no reason to attribute the Yonkers experience to circumstances particular to Yonkers and its history of segregation. In short, a finding of prior segregation, coupled with a finding of present day racial differences in educational achievement, is an insufficient positive test for the presence of residual segregative effects. See Wessmann, 160 F.3d at 801. B. Remedy The Supreme Court has listed three principles that guide a court’s exercise of remedial powers in a school desegregation case. First, “the nature of the desegregation remedy" }, { "docid": "8717121", "title": "", "text": "multi-cultural teaching techniques on the part of younger teachers could be fairly traced to the era of de jure segregation— before they started teaching. It is possible that these relatively new teachers received inadequate training, or that the Board is recruiting poor teachers, but neither state of affairs would constitute a vestige of prior segregation. It is not enough to suggest that new teachers are infected by their hidebound colleagues, and therefore cannot master new techniques. See Wessmann, 160 F.3d at 807 (“While the idea of ‘socialization’ may be intellectually elegant, courts must insist on seeing concrete evidence.”). Third, pedagogical currents shift over time. It cannot be expected that every school district will succeed in continuously retraining its teachers, new and old, to be adept in current techniques. Failure to succeed at such an endeavor can be attributed to many things, but the linkage to long-ended segregation does not hold. The inability or unwillingness of some teachers to pursue strategies such as cooperative learning does not render the school system a constitutional violator. Cooperative learning did not even exist as a methodology when this litigation began, as Hardeman testified. Fourth, curriculum is a sensitive matter, drawing subjective inputs from education policy, local politics and parental preference. Absent some extraordinary showing, we will not conclude that the Constitution requires a local school board to adopt one curriculum over another, or that children of differing ethnicity and race require separate curricula or teaching techniques. There was no demonstration that those who drafted the curriculum in 1980 acted with racial animus to craft a school program such that children of certain ethnicities or races would fail to learn, or that the curriculum represented anything other than the pedagogical thinking of the time. To cast the curriculum as a vestige of segregation, plaintiffs must show more than that it was adopted in the time of segregation and has since become outmoded. Plaintiffs have failed to show the causal link between de jure segregation and the purported yestige. (b) Low Expectations The district court did not cite specific facts or anecdotes to support its conclusion" }, { "docid": "2902534", "title": "", "text": "cert. dismissed sub nom., Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. 437, 100 S.Ct. 716, 62 L.Ed.2d 626 (1980)). The plan featured magnet schools, a majority to minority transfer program, and a busing program for students in grades 4-8. Following remand and an extensive evidentiary hearing in 1981, the Court (Sanders, J.) held that additional systemwide transportation was not a feasible remedy. Tasby v. Wright, 520 F.Supp. 683, 706-07 (N.D.Tex. 1981) , aff'd in part and rev’d in part, 713 F.2d 90 (5th Cir.1983). The Court further held that, while vestiges of state-imposed racial segregation remained in the District, effective remedies could be fashioned to overcome the constitutional violation. Id. The Court directed the parties to prepare and file desegregation plans for the Court’s consideration. Id. at 749. Additional desegregation remedies were then ordered by the Court. Tasby v. Wright, 542 F.Supp. 134 (N.D.Tex. 1982) . The remedies imposed in the 1976 Plan remained in effect. In 1984, the Court directed the District to open three Learning Centers in South Dallas for grades 4-6. Tasby v. Wright, 585 F.Supp. 453 (N.D.Tex.1984), aff'd, Tasby v. Black Coalition to Maximize Educ., 771 F.2d 849 (5th Cir.1985). The Learning Centers returned previously bused minority students to their neighborhood schools, and instituted creative educational remedies to improve the achievement levels of these students. Id. at 455-56. In 1986, the Court directed the opening of three additional Learning Centers, in West Dallas. Tasby v. Wright, 630 F.Supp. 597 (N.D.Tex.1986). Since then, more Learning Centers have been opened. Over the years, the Court has held numerous conferences and has issued many decisions in the case. The Court has noted the District’s greatly improved attitude toward desegregation. See, e.g., Tasby, 630 F.Supp. at 603 n. 33; 412 F.Supp. at 1207; 520 F.Supp. at 683. B. Condition of the Dallas Independent School District The Dallas Independent School District is one of the largest school districts in the nation, both in geographic size and in student. enrollment. The District encompasses 351 square miles. Tasby, 630 F.Supp. at 603. The DISD served 139,819 students in 1992-93; this impressive" }, { "docid": "15396987", "title": "", "text": "the veteran teachers would have been challenged professionally by the same transitions in teaching methods and theories even if Yonkers had never imposed segregation. Cf. Missouri v. Jenkins, 515 U.S. 70, 102, 115 S.Ct. 2038, 2055-56, 132 L.Ed.2d 63 (1995); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434-36, 96 S.Ct. 2697, 2704, 49 L.Ed.2d 599 (1976). Second, the Board of Education never adequately explains how any deficiencies in multi-cultural teaching techniques on the part of younger teachers could be fairly traced to the era of de jure segregation— before they started teaching. It is possible that these relatively new teachers received inadequate training, or that the Board is recruiting poor teachers, but neither state of affairs would constitute a vestige of prior segregation. It is not enough to suggest that new teachers are infected by their hidebound colleagues, and therefore cannot master new techniques. See Wessmann, 160 F.3d at 807 (“While the idea of ‘socialization’ may be intellectually elegant, courts must insist on seeing concrete evidence.”). Third, pedagogical currents shift over time.' It cannot be expected that every school district will succeed in continuously retraining its teachers, new and old, to be adept in current techniques. Failure to succeed at such an endeavor can be attributed to many things, but the linkage to long-ended segregation does not hold. The inability or unwillingness of some teachers to pursue strategies such as cooperative learning does not render the school system a constitutional violator. Cooperative learning did not even exist as a methodology when this litigation began, as Hardeman testified. Fourth, curriculum is a sensitive matter, drawing subjective inputs from education policy, local politics and parental preference. Absent some extraordinary showing, we will not conclude that the Constitution requires a local school board to adopt one curriculum over another, or that children of differing ethnicity and race require separate curricula or teaching techniques. There was no demonstration that those who drafted the curriculum in 1980 acted with racial animus to craft a school program such that children of certain ethnicities or races would fail to learn, or that the curriculum" }, { "docid": "15396994", "title": "", "text": "means that many minority children’s “ability to comprehend, understand and use information is not going to be met at all.” It is impossible to see how all vestiges of segregation can be erased if it is contended one vestige is low teacher expectations and the other is the failure of teachers to realize that minority students — presumed to be at the bottom of the class — are not reached by teaching techniques targeted to the middle. The more one adopts teaching techniques that assume minority students are at the bottom, the more one reinforces the idea of low expectations. This reciprocal effect would assure that the taint of segregation could never be purged. And it is clear enough that the Board has no incentive to rid itself of that taint so long as its self-accusation generates a flow of state remedial funds through this litigation. (c) Test Scores The district court found the regression analysis on racial disparities in achievement test scores (introduced at the 1993 vestiges trial) to be highly significant. Although the court expressly declined to consider the disparities as vestiges in themselves, it deemed them “consequences” of vestiges, see Yonkers TV, 833 F.Supp. 214, 222 (S.D.N.Y.1993), and placed heavy emphasis on them. Thus, the court observed that the Board’s “burden of showing that these achievement disparities result from vestiges of segregation is not a heavy one.” Id. (footnote omitted). As other courts have recognized, using achievement test scores as a measure, either direct or indirect, of a school system’s movement away from segregation is deeply problematic. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 101, 115 S.Ct. 2038, 2055, 132 L.Ed.2d 63 (1995); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-78 (3d Cir.1996). True, the study examining test results in Yonkers was more sophisticated than studies that some other appellate courts have found insufficient. In an effort to isolate race as an explanatory factor, the study controlled for some other possible factors, including enrollment in special" }, { "docid": "15396995", "title": "", "text": "court expressly declined to consider the disparities as vestiges in themselves, it deemed them “consequences” of vestiges, see Yonkers TV, 833 F.Supp. 214, 222 (S.D.N.Y.1993), and placed heavy emphasis on them. Thus, the court observed that the Board’s “burden of showing that these achievement disparities result from vestiges of segregation is not a heavy one.” Id. (footnote omitted). As other courts have recognized, using achievement test scores as a measure, either direct or indirect, of a school system’s movement away from segregation is deeply problematic. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 101, 115 S.Ct. 2038, 2055, 132 L.Ed.2d 63 (1995); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-78 (3d Cir.1996). True, the study examining test results in Yonkers was more sophisticated than studies that some other appellate courts have found insufficient. In an effort to isolate race as an explanatory factor, the study controlled for some other possible factors, including enrollment in special education, level of English ability, prior test scores, receipt of subsidized or free lunch (a crude proxy for socioeconomic status), and attendance at schools with a high concentration of children receiving a subsidized or free lunch. See Yonkers IV, 833 F.Supp. at 221. As the district court acknowledged, however, the study failed to control for several other factors that could explain some or all of the gap, including “birth weight, educational and occupational background of parents, parental interest and involvement, single parent status, ... mobility and other socio-economic factors.” Id. at 222. Without taking account of such factors, which describe profound childhood influences, the study’s conclusion that there is a purely racial achievement gap in Yonkers strikes us as result-driven. Cf. Wessmann, 160 F.3d at 802 (“[WJhether past discrimination necessitates current action is a fact-sensitive inquiry, and courts must pay careful attention to competing explanations for current realities.”). The district court nevertheless chose to credit the study’s conclusion, and we need not decide whether that reliance was clear error, because there is a deeper problem" }, { "docid": "1502873", "title": "", "text": "Plaintiffs and the KCMSD maintain that because the State violated the Constitution, the burden of proof rests on the adjudged constitutional violator to show the elimination of any vestiges of the prior discrimination. The State contends that while this might be true for a vestige of a racial imbalance, it does not apply to any educational' vestiges, such as the achievement gap shown to exist between test scores of black and white students within the KCMSD. As support, the State cites several unitary status eases that, according to the State, shift the burden of proof back to the plaintiffs when the alleged vestige is an achievement gap. See Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 776-78 (3d Cir.1996) (burden of proof on plaintiff because alleged student achievement disparities that were raised in the unitary status hearing had not previously been identified as a vestige of de jure segregation); School Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1310-11 (4th Cir.1987) (affirming the district court decision to shift the burden of proof to plaintiffs because the school district had already attained unitary status); Oliver v. Kalamazoo Board of Education, 640 F.2d 782, 810-11 (6th Cir.1980) (because school district had achieved unitary status, burden of proof on plaintiffs regarding the achievement gap); People Who Care v. Rockford Board of Education, No. 89-C20168, 1996 WL 364802, at *73 & n. 146 (N.D.Ill. June 7, 1996) (refusing to extend burden shifting to achievement scores). United States v. City of Yonkers, 833 F.Supp. 214, 220 (S.D.N.Y.1993) (causation issue deferred, but court notes that burden of proof rests on defendant once constitutional infraction is established). It is well established that once a court has found an unlawful dual school system, the plaintiffs are entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants. Dayton Board of Education v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979). “[A]fter past intentional actions resulting in segregation have been established ... the burden" }, { "docid": "17216087", "title": "", "text": "of the State’s claim was that disparities among the three racial/ethnic groups (Afro-American, Hispanic and non-minority) in terms of the proportion of students in each group who fail to meet the State Reference Point on State mandated Pupil Evaluation Program (“PEP”) tests at the third and sixth grade levels was approximately the same in Yonkers and the four districts to which it was compared. The Yonkers Board of Education (‘YBE”) countered these claims by updating the evidence which it had presented in the 1993 procedure to demonstrate that standard test results of majority, Black and Hispanic students conducted since 1993 showed a continuation of the gap reflecting lower minority achievement. Disproportionate suspension rates, retentions, dropouts and referrals to special education have also continued to date. As to claims that achievement results may be impacted by factors other than vestiges, the YBE noted that the State had made no effort to overcome the multiple regression analysis utilized in the 1993 proceedings which this Court found demonstrated that race is a statistically significant factor in accounting for the disparity in reading and math scores “even after factoring out other possible causes.” 833 F.Supp. at 221. Testimony introduced by the YBE also reflected the perception of Yonkers school principals and other supervisory personnel that some teachers’ attitudes and expectations still too often reflect past stereotypes, e.g., some teachers calling more frequently on majority students seated in the center of the class while giving less attention to minority students. C. Findings as to Vestiges The parties are in disagreement with respect to which party has the burden of proof as to the continuation of vestiges. This Court has previously opined that in light of the procedural posture of this case the State bears this burden. We find, however, that it is not necessary to resolve this question because we find that the YBE has clearly demonstrated by a strong preponderance of the evidence that vestiges of segregation currently exist in the Yonkers Public School system. Although staff development programs and other remedial measures are attempting to address these problems, the evidence introduced by the" }, { "docid": "17216104", "title": "", "text": "which the amount of funding is determined, the lack of any assurance of continuity and of any specific relevant direction as to the application of such funding. We have reviewed the other State objections and find them to be without merit. We adopt and approve the Recommendations in the Advisory Opinion insofar as they apply to implementation of EIP I and proceed to a consideration of EIP II. B. EIP II The YBE has promulgated an Educational Improvement Plan, (EIP II Ex. 1A), adopted by the Board in September 1997. In its Foreword to the Plan, signed by the Superintendent of Schools Reginald Marra, and President of the Board of Trustees, Elaine Tsu, it is stated: EIP II represents the best thinking of hundreds of people in our educational community on the elimination of vestiges of segregation. The plan was developed by trustees, administrators, teachers, parents, students and community representatives. To develop this plan we have sought the advise of noted educators and have evaluated research fi*om urban centers throughout this country. (EIP II Ex. la at 1.) The Plan states that it has one major goal, which focuses on the equity of student outcomes. It is: To eliminate all vestiges of segregation in the Yonkers Public Schools (thereby eliminating gaps in achievement and other learning outcomes). (Id.) EIP II identifies specific vestiges of segregation which have previously been cited and purports to address them directly as follows: The Vestiges In achieving the goal of eliminating vestiges of segregation, EIP II focuses on vestiges and the evidence of vestiges to propose specific remedy actions to remove the vestige. 1. Vestige: ‘Within many schools in Yonkers, there remains racial and ethnic segregation of students among various levels of courses, programs, classes and in-class grouping, which affects the quality and type of education provided to children of different racial and ethnic groups.” ... “The implementation of EIP I has not addressed or alleviated many of the conditions of inequality that were fostered by the racially dual system of education in Yonkers, such as racially disparate attitudes and expectations of teachers and administrators;" }, { "docid": "17216086", "title": "", "text": "the introduction into evidence of ten depositions and the testimony of Dr. Theresa Bucci. The thrust of this evidence and of the State’s claims are that gaps in achievement scores between minority and majority students may be caused by conditions other than vestiges; that the written evaluations of Yonkers teachers by their superiors do not indicate that there is widespread dissatisfaction with teacher attitudes and proficiency, that certain remedial measures are in effect and are meeting with a degree of success and that the existence of a gap between minority and majority achievement levels is not unique to Yonkers. This last contention was based on a comparison by way of graph depicting the level of majority and minority test results in Yonkers and four other school districts in New York State. (See Trial Ex. A (Streeter Aff.).) These four other districts—Freeport, New York City, New York City Community School districts 15 and 28—were selected by the State because they had overall enrollments of majority and minority students said to parallel those in Yonkers. The thrust of the State’s claim was that disparities among the three racial/ethnic groups (Afro-American, Hispanic and non-minority) in terms of the proportion of students in each group who fail to meet the State Reference Point on State mandated Pupil Evaluation Program (“PEP”) tests at the third and sixth grade levels was approximately the same in Yonkers and the four districts to which it was compared. The Yonkers Board of Education (‘YBE”) countered these claims by updating the evidence which it had presented in the 1993 procedure to demonstrate that standard test results of majority, Black and Hispanic students conducted since 1993 showed a continuation of the gap reflecting lower minority achievement. Disproportionate suspension rates, retentions, dropouts and referrals to special education have also continued to date. As to claims that achievement results may be impacted by factors other than vestiges, the YBE noted that the State had made no effort to overcome the multiple regression analysis utilized in the 1993 proceedings which this Court found demonstrated that race is a statistically significant factor in accounting for" }, { "docid": "16400103", "title": "", "text": "of a school district affect educational outcomes”); Flax, 725 F.Supp. at 330 (“Poor achievement scores are often an incidence of poverty and family environment, matters not remediable by a school desegregation plan”). The Constitution does not require that a school district eliminate every trace of racial disparity between standardized test scores. Although the Constitution requires that all of its citizens have equal access to the pursuit of education, and that they be given equal breaks while attending school, it does not insist that they all finish even. The proper test under the Constitution is equality of opportunity, not of results. Coalition, 90 R.3d at 766. We must also recognize that there are limits to what court-ordered remedies can accomplish. As the Supreme Court stated in Sivann: We are concerned in these cases with the elimination of discrimination inherent in the dual school systems, not the myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the [desegregation cases] was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. Swann, 402 U.S. at 22, 23, 91 S.Ct. 1267. Dr. Armor’s testimony demonstrated that the difference-between average black and white student achievement in WHSD is not attributable to racial discrimination or the vestiges of prior segregation, but rather to socioeconomic differences between black and white students in the Woodland Hills School District, Pennsylvania and the United States. (Commw. Ex. 1031; Tr. 4/25/00, at 11-12, 23-27.) We therefore conclude that the remaining disparity in achievement, though extremely troubling, is not a vestige of the constitutional violation in this ease. It is clear to the Court that insofar as the defendants have complied with our orders to fund and implement remedial and compensatory educational programs, that they have done everything practicable to reduce the racial disparity in academic achievement. The existing gap is attributable" }, { "docid": "15396973", "title": "", "text": "498 (2d Cir.1990); United States v. City of Yonkers, No. 80 CIV. 6761(LBS), 1992 WL 176953 (S.D.N.Y. July 10, 1992). The district court then ordered a trifurcated trial to establish: (1) whether “vestiges” of segregation remained in the Yonkers schools despite EIP I; (2) whether there was a causal relationship between any unconstitutional actions by the State defendants and those vestiges; and (3) what remedy, if any, would be appropriate. After the first phase of this three-part proceeding, the district court held that vestiges of segregation persisted. Al though the district court placed considerable weight on racial disparities in achievement test results, it treated the testing disparities as evidence of vestiges but declined to consider them vestiges of segregation in themselves. See Yonkers TV, 833 F.Supp. at 222. The court relied on a study prepared by a Board expert that applied multiple regression analysis to students’ reading and math scores on the Metropolitan Achievement Test. The study concluded that race was a statistically significant factor in accounting for disparities in performance even after controlling for other possible influences, such as placement in special education, poverty (for which receipt of subsidized lunches was used as a proxy), attendance at schools where many students receive subsidized lunches, and limited English language skills. See id. at 221. The district court acknowledged that the study “suffered] from a lack of adequate base data” and that there could be other factors contributing to the disparity in results, such as weight at birth, the educational level of parents, and living in a single-parent household. Id. at 221-22. The court did not credit evidence adduced by the State (i) that other urban school districts nationally suffered from the same racial gaps in achievement scores, see id. at 223 (“[T]he widespread nature of the problem ... does not provide an excuse for inaction.”); (ii) that the lack of adequate multi-cultural training was attributable to the staffs “intransigence” rather than a lack of funds, id.; and (iii) that ongoing disparities in educational results are attributable to intervening demographic changes rather than to historical segregation, see id. at 224-25. Beginning" }, { "docid": "8717122", "title": "", "text": "did not even exist as a methodology when this litigation began, as Hardeman testified. Fourth, curriculum is a sensitive matter, drawing subjective inputs from education policy, local politics and parental preference. Absent some extraordinary showing, we will not conclude that the Constitution requires a local school board to adopt one curriculum over another, or that children of differing ethnicity and race require separate curricula or teaching techniques. There was no demonstration that those who drafted the curriculum in 1980 acted with racial animus to craft a school program such that children of certain ethnicities or races would fail to learn, or that the curriculum represented anything other than the pedagogical thinking of the time. To cast the curriculum as a vestige of segregation, plaintiffs must show more than that it was adopted in the time of segregation and has since become outmoded. Plaintiffs have failed to show the causal link between de jure segregation and the purported yestige. (b) Low Expectations The district court did not cite specific facts or anecdotes to support its conclusion that low teacher expectations for minority students constitute a vestige of prior segregation. But the Board’s brief on appeal cites several examples, some of which we summarize below. Jacquilynn Beville, a social worker employed by the Yonkers public schools, testified that in some schools teachers viewed minority students as “deficient because of either coming from another country, being bilingual, or coming from an urban or a poor neighborhood.” She also described “a tendency not to see [minority students’] potential for success” but rather to see “their weaknesses ... 'and to focus on that, and to teach to that level of performance.” Sylvia A. Muckelvaney, a teacher and “multi-cultural liaison” at a magnet elementary school, said that she had “heard some teachers over the years make the statement that they don’t believe that all children can learn and in general they were referring at the time to children of color.” She also testified that when visiting colleagues’ classrooms to pick up something or have brief conversations, she has “noticed particular things that sort of make you" }, { "docid": "16400104", "title": "", "text": "system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. Swann, 402 U.S. at 22, 23, 91 S.Ct. 1267. Dr. Armor’s testimony demonstrated that the difference-between average black and white student achievement in WHSD is not attributable to racial discrimination or the vestiges of prior segregation, but rather to socioeconomic differences between black and white students in the Woodland Hills School District, Pennsylvania and the United States. (Commw. Ex. 1031; Tr. 4/25/00, at 11-12, 23-27.) We therefore conclude that the remaining disparity in achievement, though extremely troubling, is not a vestige of the constitutional violation in this ease. It is clear to the Court that insofar as the defendants have complied with our orders to fund and implement remedial and compensatory educational programs, that they have done everything practicable to reduce the racial disparity in academic achievement. The existing gap is attributable to family and socioeconomic factors which are outside the control of the District. If the District had fully complied with our order to revise its curriculum, this disparity would not be a bar to a finding of unitary status. The disparity in achievement does not convince us that the court-ordered remedial programs have had no effect. Without them, it is certainly plausible that the evidence would show an even greater gap. Part of the rationale for the compensatory programs was to provide academic support for children as they move to a detraeked curriculum. Inasmuch as the secondary school math curriculum has not been fully redesigned, some of these remedial programs still have a role to play as students adapt to a fully detracked curriculum. Since the District has not yet achieved unitary status with respect to curriculum and assessment, we will order that a number of the court-ordered compensatory programs be continued for the next three years. To some extent, we will follow the District’s lead in determining which programs have been most effective, as" }, { "docid": "8717095", "title": "", "text": "to information relevant to the issue. • The NAACP and the Board have failed to carry their burden of demonstrating that the two circumstances identified by the district court exist and are vestiges of prior segregation. The evidence supporting these findings was almost entirely anecdotal, and failed to forge an adequate causal link between the regime of de jure segregation and any ongoing remediable deficiency. Likewise, statistical evidence about racial disparities in educational achievement failed to demonstrate that the racial gap was the product of prior segregation, as opposed to, for example, ambient societal racism. • The remedy imposed by the district court exceeded its broad remedial authority because the remedy constitutes by and large a general school improvement program. The court failed to articulate the required nexus between any ongoing injury caused by unconstitutional conduct and proposed remedial measures. • As the case is currently structured, we reject the State’s arguments on municipal incapacity and standing. Since the State concedes that the NAACP plaintiffs do have standing to litigate the State’s liability and the scope of the remedy, the district court has little choice but to apportion costs among the joint tortfeasors. • Finally, the district court did not exceed its remedial authority in allocating to the State one-half the annual costs of its previously-imposed remedy. At the same time, we leave it to the district court on remand to assess the ongoing efficacy and necessity of that remedy. BACKGROUND We will assume familiarity with our previous decisions in the case, see United States v. City of Yonkers, 96 F.3d 600 (2d Cir.1996) (“Yonkers V”); United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir.1987) (“Yonkers III”), and will here emphasize only those facts and circumstances that bear upon the issues presented on this appeal. In 1980, the United States sued the City of Yonkers, the Yonkers Board of Education, and the Yonkers Community Development agency, alleging housing and school segregation in violation of the Equal Protection Clause and federal civil rights statutes. The NAACP intervened as a plaintiff the following year, and the case was subsequently" }, { "docid": "8717101", "title": "", "text": "in results, such as weight at birth, the educational level of parents, and living in a single-parent household. Id. at 221-22. The court did not credit evidence adduced by the State (i) that other urban school districts nationally suffered from the same racial gaps in achievement scores, see id. at 223 (“[T]he widespread nature of the problem ... does not provide an excuse for inaction.”); (ii) that the lack of adequate multi-cultural training was attributable to the staffs “intransigence” rather than a lack of funds, id.; and (iii) that ongoing disparities in educational results are attributable to intervening demographic changes rather than to historical segregation, see id. at 224-25. Beginning with “the premise that all children can learn,” Judge Sand found that the Board of Education had demonstrated that the test disparities resulted from vestiges of discrimination, and identified two ongoing circumstances as vestiges of segregation resulting in racial disparities in educational quality: (i) low teacher expectations for minority students and (ii) insufficiently multi-cultural curricula and teaching techniques. See id. at 222-23. The State did not appeal • the district court’s 1993 decision on vestiges because it was the first stage of a trifurcated trial. Although this Court’s 1996 opinion ruled on other aspects of the case, it noted that the finding of vestiges was not under review. See Yonkers V, 96 F.3d at 604. That matter therefore comes before this Court for the first time in this appeal. The second phase of the trifurcated litigation is not directly relevant to this appeal. After a trial in 1995, the district court found as facts that the State knew or should have known of the de jure segregation in the Yonkers public schools and that it had failed to take action to end it. See id. at 604-05. As a matter of law, however, the district court held that the State’s omissions could not be the basis of liability for violation of the Fourteenth Amendment or of the Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C. §§ 1701-1758. In 1996, this Court affirmed the district court’s factual findings on the" }, { "docid": "17216105", "title": "", "text": "la at 1.) The Plan states that it has one major goal, which focuses on the equity of student outcomes. It is: To eliminate all vestiges of segregation in the Yonkers Public Schools (thereby eliminating gaps in achievement and other learning outcomes). (Id.) EIP II identifies specific vestiges of segregation which have previously been cited and purports to address them directly as follows: The Vestiges In achieving the goal of eliminating vestiges of segregation, EIP II focuses on vestiges and the evidence of vestiges to propose specific remedy actions to remove the vestige. 1. Vestige: ‘Within many schools in Yonkers, there remains racial and ethnic segregation of students among various levels of courses, programs, classes and in-class grouping, which affects the quality and type of education provided to children of different racial and ethnic groups.” ... “The implementation of EIP I has not addressed or alleviated many of the conditions of inequality that were fostered by the racially dual system of education in Yonkers, such as racially disparate attitudes and expectations of teachers and administrators; teaching methods that support effective instruction primarily for middle or upper middle class white students in homogeneous classrooms; curriculum that is neither multicultural nor aligned to the goals and objectives of the desegregating school system; and a lack of adequate services for students with limited English proficiency.” Action Plan: The alignment of a curriculum, assessments and teaching methodology with State and National Standards, and access to those supports that will enable minority students to succeed in courses using high level curriculum. Action Plan: Providing continuing professional development that will equip all teachers with the knowledge and skills needed to teach to an increasingly diverse student population with a variety of educational, language, social, and health needs. Developing appropriate time for staff development through summer seminars and classes on teaching and learning and those specific areas relevant to eliminating vestiges. Providing time and resources during the school year; for in-school staff development and development of a strong staff supervision and evaluation component to determine the effectiveness of staff development. Provide adequate and appropriate materials and equipment" }, { "docid": "15396988", "title": "", "text": "It cannot be expected that every school district will succeed in continuously retraining its teachers, new and old, to be adept in current techniques. Failure to succeed at such an endeavor can be attributed to many things, but the linkage to long-ended segregation does not hold. The inability or unwillingness of some teachers to pursue strategies such as cooperative learning does not render the school system a constitutional violator. Cooperative learning did not even exist as a methodology when this litigation began, as Hardeman testified. Fourth, curriculum is a sensitive matter, drawing subjective inputs from education policy, local politics and parental preference. Absent some extraordinary showing, we will not conclude that the Constitution requires a local school board to adopt one curriculum over another, or that children of differing ethnicity and race require separate curricula or teaching techniques. There was no demonstration that those who drafted the curriculum in 1980 acted with racial animus to craft a school program such that children of certain ethnicities or races would fail to learn, or that the curriculum represented anything other than the pedagogical thinking of the time. To cast the curriculum as a vestige of segregation, plaintiffs must show more than that it was adopted in the time of segregation and has since become outmoded. Plaintiffs have failed to show the causal link between de jure segregation and the purported vestige. (b) Low Expectations The district court did not cite specific facts or anecdotes to support its conclusion that low teacher expectations for minority students constitute a vestige of prior segregation. But the Board’s brief on appeal cites several examples, some of which we summarize below. Jacquilynn Beville, a social worker employed by the Yonkers public schools, testified that in some schools teachers viewed minority students as “deficient because of either coming from another country, being bilingual, or coming from an urban or a poor neighborhood.” She also described “a tendency not to see [minority students’] potential for success” but rather to see “their weaknesses ... and to focus on that, and to teach to that level of performance.” Sylvia A. Muckelvaney," }, { "docid": "8717128", "title": "", "text": "teaching techniques targeted to the middle. The more one adopts teaching techniques that assume minority students are at the bottom, the more one reinforces the idea of low expectations. This reciprocal effect would assure that the taint of segregation could never be purged. And it is clear enough that the Board has no incentive to rid itself of that taint so long as its self-accusation generates a flow of state remedial funds through this litigation. (c) Test Scores The district court found the regression analysis on racial disparities in achievement test scores (introduced at the 1993 vestiges trial) to be highly significant. Although the court expressly declined to consider the disparities as vestiges in themselves, it deemed them “consequences” of vestiges, see Yonkers TV, 833 F.Supp. 214, 222 (S.D.N.Y.1993), and placed heavy emphasis on them. Thus, the court observed that the Board’s “burden of showing that these achievement disparities result from vestiges of segregation is not a heavy one.” Id. (footnote omitted). As other courts have recognized, using achievement test scores as a measure, either direct or indirect, of a school system’s movement away from segregation is deeply problematic. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 101, 115 S.Ct. 2038, 2055, 132 L.Ed.2d 63 (1995); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-78 (3d Cir.1996). True, the study examining test results in Yonkers was more sophisticated than studies that some other appellate courts have found insufficient. In an effort to isolate race as an explanatory factor, the study controlled for some other possible factors, including enrollment in special education, level of English ability, prior test scores, receipt of subsidized or free lunch (a crude proxy for socio-economic status), and attendance at schools with a high concentration of children receiving a subsidized or free lunch. See Yonkers IV, 833 F.Supp. at 221. As the district court acknowledged, however, the study failed to control for several other factors that could explain some or all of the gap, including “birth weight, educational" }, { "docid": "8717100", "title": "", "text": "remedy, if any, would be appropriate. After the first phase of this three-part proceeding, the district court held that vestiges of segregation persisted. Although the district court placed considerable weight on racial disparities in achievement test results, it treated the testing disparities as evidence of vestiges but declined to consider them vestiges of segregation in themselves. See Yonkers IV, 833 F.Supp. at 222. The court relied on a study prepared by a Board expert that applied multiple regression analysis to students’ reading and math scores on the Metropolitan Achievement Test. The study concluded that race was a statistically significant factor in accounting for disparities in performance even after controlling for other possible influences, such as placement in special education, poverty (for which receipt of subsidized lunches was used as a proxy), attendance at schools where many students receive subsidized lunches, and limited English language skills. See id. at 221. The district court acknowledged that the study “suffered] from a lack of adequate base data” and that there could be other factors contributing to the disparity in results, such as weight at birth, the educational level of parents, and living in a single-parent household. Id. at 221-22. The court did not credit evidence adduced by the State (i) that other urban school districts nationally suffered from the same racial gaps in achievement scores, see id. at 223 (“[T]he widespread nature of the problem ... does not provide an excuse for inaction.”); (ii) that the lack of adequate multi-cultural training was attributable to the staffs “intransigence” rather than a lack of funds, id.; and (iii) that ongoing disparities in educational results are attributable to intervening demographic changes rather than to historical segregation, see id. at 224-25. Beginning with “the premise that all children can learn,” Judge Sand found that the Board of Education had demonstrated that the test disparities resulted from vestiges of discrimination, and identified two ongoing circumstances as vestiges of segregation resulting in racial disparities in educational quality: (i) low teacher expectations for minority students and (ii) insufficiently multi-cultural curricula and teaching techniques. See id. at 222-23. The State did" } ]

[ { "docid": "22601617", "title": "", "text": "§ 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of “threatened” injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, see Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., 274 U. S. 37, 54-55 (1927); he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. See Swift & Co. v. United States, 196 U. S. 375, 396 (1905); Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., supra, at 54; United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952); United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to pro vide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. E. g., United States v. Borden Co., 347 U. S. 514, 518 (1954). Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice “adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). Its availability should be “conditioned by the necessities of the public interest which Congress has sought to protect.” Id., at 330. Judged by the proper standard, the record before us warranted the injunction with respect to Canada. The findings of the District Court were that HRI and CRPL were conspiring to exclude Zenith and others from the Canadian market; there was nothing indicating that this clear violation of the antitrust laws had terminated or that the threat to Zenith inherent in the conduct would cease in the foreseeable future. Neither the relative quiescence of the pool during the litigation nor claims that objectionable conduct would" } ]

[ { "docid": "20558052", "title": "", "text": "of action for the same violation. In Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338-339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77, 92 (1971), (Zenith II), the Supreme Court spoke of this in explaining how a damage claim under Section 4 arises: Generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business. ... In the context of a continuing conspiracy to violate the antitrust laws, such as the conspiracy in the instant case, this has usually been understood to mean that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. . . . However, each separate cause of action that so accrues entitles a plaintiff to recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Thus the protection afforded a plaintiff by Section 4 looks to the future as well as the past. The equitable relief offered by Section 16 of the Clayton Act also looks to the future, but as stated in Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129, 152 (1969), (Zenith I): That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, . . . he need" }, { "docid": "22774275", "title": "", "text": "serious threat to competition and even though the evidence falls short of proving the kind of actual restraint that violates the Sherman Act, 15 U. S. C. §1. The language of § 16 of the Clayton Act also reflects Congress’ emphasis on probable harm rather than actual harm. Section 16 authorizes private parties to obtain injunctive re lief “against threatened loss or damage” by a violation of § 7. The broad scope of the language in both § 7 and § 16 identifies the appropriate standing requirements for injunctive relief. As the Court has squarely held, it is the threat of harm, not actual injury, that justifies equitable relief: “The evident premise for striking [the injunction at issue] was that Zenith’s failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 16 U. S. C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130 (1969) (citations omitted). Judged by these standards, respondent’s showing that it faced the threat of loss from an impending antitrust violation clearly conferred standing to obtain injunctive relief. Re spondent alleged, and in the opinion of the courts below proved, the injuries it would suffer from a violation of § 7: “Competition in the markets for the procurement of fed cattle and the sale of boxed beef will be substantially lessened and a monopoly may tend to be created in violation of Section 7 of the Clayton Act; “Concentration in those lines of commerce will be increased and the tendency towards concentration will be accelerated.” 1 App. 21. More generally, given the statutory" }, { "docid": "19699619", "title": "", "text": "damage.” As the Supreme Court held in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969): [Section 16] authorizes injunctive relief upon the demonstration of “threatened” injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury . . . ; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. [Footnote omitted.] Plainly, this suit need not be postponed by the Coliseum until it actually suffers injury by finding itself at the commencement of the 1980-81 season without the Rams or any other professional football team as a tenant. Zenith Radio teaches that not only must there be a threat of injury, but that the threat must be significant for injunctive relief to be granted. To satisfy the requirement of significant threat of injury and to withstand a motion to dismiss for lack of standing the Coliseum must allege: 1) that the Rams will cease playing home games at the Coliseum as of the 1980-81 season; and 2) that it is reasonably likely that, before the start of the 1980-81 season, the NFL clubs will not approve the transfer of an existing team to the Coliseum or the placement of an expansion team there. Defendants assert, however, that these two allegations describe a threatened injury too speculative to pass the “case or controversy” test. They rely principally on the abortion decision, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In Roe, although the wife was not pregnant and thus not immediately faced with a denial of an abortion, a married couple sought to challenge Texas statutes that generally prohibited abortions. The Supreme Court held that the couple lacked standing because their injury was too speculative and indirect. “Their alleged injury [the denial of an abortion] rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health.” Id. at 128, 93 S.Ct. at 714." }, { "docid": "558300", "title": "", "text": "damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion. * * *” 401 U.S. at 338, 91 S.Ct. at 806. On the other hand, “[t]o recover those damages, he must sue within the requisite number of years from the accrual of the action [and] it is horn-book law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable.” Id. Thus, Mr. Justice White concluded, Applying Zenith to the instant case, in order to hold that Louisville’s entire claim accrued when it was unlawfully terminated in 1963, we would have to be able to say that it could have proved its damages with sufficient certainty at that time to warrant a judgment in its favor for the entire period during which Uniroyal was engaging in antitrust violations that affected it. Obviously, in light of Judge Mansfield’s finding that the effects of Uniroyal’s unlawful restraints endured until 1969, such a statement could not be justified. Louisville had no means of knowing to what extent it would be able to fill its requirements of MH-30 from other distributors or at what price. Indeed, if Louisville had asserted in 1963 that it would lose all sales, and had endeavored to compute damages on that basis, we can be quite confident that Uniroyal would have forcefully contended that this was not necessarily so. “In antitrust and treble damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted [citations omitted]. Otherwise" }, { "docid": "21424259", "title": "", "text": "the statute of limitations begins to run, when a defendant commits an antitrust violation that injures a plaintiff’s business. Zenith, 401 U.S. at 338, 91 S.Ct. at 806; Berkey Photo, 603 F.2d at 295. An action for the injury must be brought within four years, plus any additional period during which the statute of limitations may be tolled. Zenith, 401 U.S. at 338, 91 S.Ct. at 806. In the context of a continuing antitrust violation with continuing injuries, this has usually been understood to mean that each time plaintiff suffers an injury caused by an illegal act of defendants, a cause of action accrues to plaintiff to recover damages based on that injury. Zenith, 401 U.S. at 338, 91 S.Ct. at 806; Crummer Co. v. Du Pont, 223 F.2d 238, 247-48 (5th Cir.), cert. denied, 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755 (1955). “Each separate cause of action that so accrues entitles a plaintiff to recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial.” Zenith, 401 U.S. at 338-39, 91 S.Ct. at 806. Thus, if a plaintiff discovers or should have discovered injury from an antitrust violation on a specific date, “a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future * * Id. To recover those damages, he must sue within four years of the time the action accrued. Of course, future damages arising from defendants’ conduct are “unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable.” Id.; see also Berkey Photo, 603 F.2d at 295; Ansul Co. v. Uniroyal, Inc., 448 F.2d 872, 884 (2d Cir.1971), cert. denied, 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972). In such cases, “refusal to award future damages as too speculative is equivalent to holding that no cause of action has yet accrued for any" }, { "docid": "22619841", "title": "", "text": "522, 536 (1915). Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date. To recover those damages, he must sue within the requisite number of years from the accrual of the action. On the other hand, it is hornbook law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable. Moe Light, Inc. v. Foreman, 238 F. 2d 817, 818 (CA6 1956); Chicago & N. W. R. Co. v. De Clow, 124 F. 142, 143 (CA8 1903); Culley v. Pennsylvania R. Co., 244 F. Supp. 710, 715 (Del. 1965). Cf. Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 206 (1891). In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Cf. Schenley Industries v. N. J. Wine & Spirit Wholesalers Assn., 272 F. Supp. 872, 887-888 (NJ 1967); Delta Theaters, Inc. v. Paramount Pictures, Inc., supra, at 648-649. Otherwise future damages that could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, contrary to the congressional purpose that private actions serve “as a bulwark of antitrust enforcement,” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968), and that the antitrust laws fully “protect the victims of the forbidden" }, { "docid": "22619842", "title": "", "text": "Co., 139 U. S. 199, 206 (1891). In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Cf. Schenley Industries v. N. J. Wine & Spirit Wholesalers Assn., 272 F. Supp. 872, 887-888 (NJ 1967); Delta Theaters, Inc. v. Paramount Pictures, Inc., supra, at 648-649. Otherwise future damages that could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, contrary to the congressional purpose that private actions serve “as a bulwark of antitrust enforcement,” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968), and that the antitrust laws fully “protect the victims of the forbidden practices as well as the public,” Radovich v. National Football League, 352 U. S. 445, 454 (1957). See also Lawlor v. National Screen Serv. Corp., 349 U. S. 322, 329 (1955). As we have already seen, acceptance of Zenith’s tolling argument requires further consideration only of that portion of Zenith’s damages suffered during the 1959-1963 period as a result of pre-1954 conduct of the conspiracy. We must now determine whether Zenith could have recovered those damages if it had brought suit for them in 1954, for if it could not, it would follow for the reasons stated above that it must be permitted to recover them now. We do not, of course, have the thinking of the district judge on this issue, and ordinarily the matter of future damages would very much depend on his informed discretion. But we are reluctant to return any issue in this litigation for another round of proceedings in the trial or appellate courts if we can fairly dispose of it at this juncture. After due consideration, we have determined" }, { "docid": "15418892", "title": "", "text": "he has suffered at the date of accrual but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. See, e. g., Farbenfabriken Bayer, A. G. v. Sterling Drug, Inc., 153 F.Supp. 589, 593 (D. C.N.J.1957); Momand v. Universal Film Exchange, Inc., supra, 43 F. Supp. at 1006. Cf. Lawlor v. Loewe, 235 U.S. 522, 536, 35 S.Ct. 170, 59 L. Ed. 341, 349 (1915). Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date. To recover those damages, he must sue within the requisite number of years from the accrual of the action. On the other hand, it is horn-book law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable. Moe Light, Inc. v. Foreman, 238 F.2d 817, 818 (C.A.6 1956); Chicago & N. W. R. Co. v. DeClow, 124 F. 142, 143 (C.A.8 1903); Culley v. Pennsylvania R. Co., 244 F. Supp. 710, 715 (D.C.Del.1965). Cf. Howard v. Stillwell & Bierce Mfg. Co., 139 U.S. 199, 206, 11 S.Ct. 500, 35 L. Ed. 147, 150 (1891). In antitrust and treble damages actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Cf. Schenley Industries v. N. J. Wine & Spirit Wholesalers Association," }, { "docid": "22124663", "title": "", "text": "23 L.Ed.2d 129 (1969). In Zenith Radio Corp., 395 U.S. at 130, 89 S.Ct. at 1580, the Supreme Court reversed a court of appeals decision setting aside the district court’s grant of injunctive relief stating: The evident premise for striking [the injunctive relief] was that Zenith’s failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes in-junctive relief upon the demonstration of “threatened” injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur____ Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws ____ Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice “adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” ... Its availability should be “conditioned by the necessities of the public interest which Congress has sought to protect.” Zenith, 395 U.S. at 130-131, 89 S.Ct. at 1580 (footnote omitted). See also Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573, 589-94 (3d Cir. 1979) (court held that the Illinois Brick direct purchaser rule did not preclude an indirect purchaser from obtaining injunc-tive relief against price fixing under section 16 of the Clayton Act.) In view of the differences between sections 4 and 16, especially as explicated in Zenith, we conclude that the question whether a defendant has violated sections 1 and/or 2 of the Sherman Act is independent of the question whether each class member must have made" }, { "docid": "13886003", "title": "", "text": "evidence that the Defendants violated Section 1 of the Sherman Act and that, as a result, the Plaintiffs have sustained damages but not in a substantial amount, then you may return a verdict for the Plaintiff class in some nominal sum such as one dollar.” Therefore, in order to award nominal damages in this case, the jury had to have found that the plaintiffs sustained some damages. The jury’s nominal damages award reflected not only a recognition of a violation of § 1 of the Sherman Act, but also a finding of actual injury to the property of the plaintiffs, as required for relief under § 4 of the Clayton Act. Nevertheless, the nominal damages award, while reflecting actual damages, did not reflect the amount. Under these circumstances, a trebling would be meaningless. IV. PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF Plaintiffs also seek prospective in-junctive relief pursuant to § 16 of the Clayton Act. 15 U.S.C.A. § 26 (West Supp. 1993). Admittedly, the plaintiffs recovered only nominal damages and it appears that defendants ceased their illegal conduct after the filing of this litigation. However, these circumstances do not preclude the issuance of an injunction if the evidence and circumstances otherwise warrant such. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969), the Supreme Court rejected as “unsound” the notion that the “failure to prove the fact of injury barred injunctive relief.” The Court found that, even in the absence of actual past and eur-rent injury, “threatened injury” and “the necessities of the public interest” may independently still warrant a prospective injunction. The Court wrote: “[Section] 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary" }, { "docid": "21424260", "title": "", "text": "he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial.” Zenith, 401 U.S. at 338-39, 91 S.Ct. at 806. Thus, if a plaintiff discovers or should have discovered injury from an antitrust violation on a specific date, “a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future * * Id. To recover those damages, he must sue within four years of the time the action accrued. Of course, future damages arising from defendants’ conduct are “unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable.” Id.; see also Berkey Photo, 603 F.2d at 295; Ansul Co. v. Uniroyal, Inc., 448 F.2d 872, 884 (2d Cir.1971), cert. denied, 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972). In such cases, “refusal to award future damages as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. The cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.” Zenith, 401 U.S. at 339, 91 S.Ct. at 806. These Clayton Act principles of accrual apply equally to civil RICO actions. We realize that in adopting a “rule of separate accrual” State Farm, 828 F.2d at 5 (Kennedy, C.J., concurring), we are rejecting the general federal rule of accrual, which requires in cases involving continuing violation and continuous injury that the statute of limitations begin running upon the commission of the first overt act caus ing damage, and does not permit a subsequent injury to start the limitations period running anew. See Lowell Wiper Supply Co. v. Helen Shop, Inc., 235 F.Supp. 640, 644 (S.D.N.Y.1964) (collecting cases). Such a rejection is mandated by the continuing violations and injuries sought to be remedied under RICO and the Clayton Act. “Otherwise, future" }, { "docid": "20558053", "title": "", "text": "will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Thus the protection afforded a plaintiff by Section 4 looks to the future as well as the past. The equitable relief offered by Section 16 of the Clayton Act also looks to the future, but as stated in Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129, 152 (1969), (Zenith I): That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, . . . he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. (Emphasis added). Hence, injunctive relief can be predicated upon a present violation, and the fact that it also involves actual past injury only serves to strengthen plaintiff’s case. The remedies contained in Sections 4 and 16 cannot be neatly divided into past and future categories. This is demonstrated by the fact that a private litigant may bring an action based on a violation and secure a present award of damages, and equitable relief. More over, this same violation may provide the basis for an additional cause of action for damages in the future. Further, plaintiff’s view of the differences between Sections 4 and 16 of the Clayton Act does not provide a very good basis with which to analyze res judicata problems. In applying that doctrine, case law fails to support such an artificial distinction between suits at law and equity. The specific question of whether a prior suit for" }, { "docid": "21424261", "title": "", "text": "but those damages already suffered. The cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.” Zenith, 401 U.S. at 339, 91 S.Ct. at 806. These Clayton Act principles of accrual apply equally to civil RICO actions. We realize that in adopting a “rule of separate accrual” State Farm, 828 F.2d at 5 (Kennedy, C.J., concurring), we are rejecting the general federal rule of accrual, which requires in cases involving continuing violation and continuous injury that the statute of limitations begin running upon the commission of the first overt act caus ing damage, and does not permit a subsequent injury to start the limitations period running anew. See Lowell Wiper Supply Co. v. Helen Shop, Inc., 235 F.Supp. 640, 644 (S.D.N.Y.1964) (collecting cases). Such a rejection is mandated by the continuing violations and injuries sought to be remedied under RICO and the Clayton Act. “Otherwise, future damages that could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, contrary to the congressional purpose that private actions serve ‘as a bulwark of * * * enforcement,’ and that the * * * laws fully ‘protect the victims of the forbidden practices as well as the public.’ ” Zenith, 401 U.S. at 340, 91 S.Ct. at 807 (citations omitted). In sum, we today hold that civil RICO actions are subject to a rule of separate accrual. Under this rule, each time plaintiff discovers or should have discovered an injury caused by defendant’s violation of § 1962, a new cause of action arises as to that injury, regardless of when the actual violation occurred. A plaintiff, under Mal-ley-Duff, must then bring his action within four years of this accrual to recover damages for the specific injury. Naturally, as with all rules of accrual, the standard tolling exceptions apply. See, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76" }, { "docid": "13886004", "title": "", "text": "conduct after the filing of this litigation. However, these circumstances do not preclude the issuance of an injunction if the evidence and circumstances otherwise warrant such. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969), the Supreme Court rejected as “unsound” the notion that the “failure to prove the fact of injury barred injunctive relief.” The Court found that, even in the absence of actual past and eur-rent injury, “threatened injury” and “the necessities of the public interest” may independently still warrant a prospective injunction. The Court wrote: “[Section] 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. “Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice ‘adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’ Its availability should be ‘conditioned by the necessities of the public interest which Congress has sought to protect.’ ” Id. at 130-31, 89 S.Ct. at 1580 (citations and footnotes omitted). Here, the threat of resumption of the conspiracy remains real. First, the defendants — that is, Cannon, Parrish, Shirley, and Sheffield and their employees — ceased their illegal price-fixing activity only after this lawsuit was filed. It was this litigation alone that brought an end to their illegal conduct. The court is convinced, however, that once this litigation is" }, { "docid": "15514453", "title": "", "text": "summary judgment is DENIED. . The Supreme Court announced a similar accrual rule under the Clayton Act, providing \"Generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Here, therefore, the Court will analyze the statute of limitations issue for all of Bulletin’s four-year claims together. . Noting that it was not deciding which version of the injury discovery rule was appropriate, the Court lefi open the possibility that circuits might settle upon different versions. For example, Justice Scalia had previously espoused an \"injury occurrence” rule, under which discovery would be irrelevant. Id. at 555, n. 2, 120 S.Ct. 1075. . Paul Richards was indicated by a federal grand jury for alleged corruption and fraud in connection with the City on October 7, 2004. On November 1, 2005, a jury convicted Mr. Richards of 35 counts of fraud, extortion, and money laundering. (Request for Judicial Notice in Support of Plaintiffs Opposition to Motion for Summary Judgment, Exh. 2-5.) . The Court’s exact language is: “in antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.” Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 339, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). . Regency points out that Mr. Kudler’s declaration describes a conversation with Mr. Spiker that was not included in the allegations in the Complaint. The Court agrees that this may make the evidence less compelling than it would be had it been included in the Complaint, but also notes that the additional statement does not contradict the allegations within the complaint. Looking at" }, { "docid": "22124662", "title": "", "text": "section 16 contains no requirement that a plaintiff prove actual injury to his business or property caused by the antitrust violation. Instead, section 16 authorizes injunctive relief for any person who demonstrates “threatened loss or damage by a violation of the antitrust laws.” Thus it is generally said that section 16 imposes a lower threshold “standing” requirement on a plaintiff than does section 4. See, e.g., Bogus v. American Speech & Hearing Ass ’n, 582 F.2d 277, 288 (3d Cir.1978); L. Sullivan, Handbook of the Law of Antitrust § 247, at 772 (1977). The courts have applied section 16 “more expansively, both because its language is less restrictive than that of section 4, ... and because the injunctive remedy is a more flexible and adaptable tool for enforcing the antitrust laws than the damage remedy.” Bogus, 582 F.2d at 288-89; see Hawaii v. Standard Oil Co. of Calif, 405 U.S. 251, 261-62, 92 S.Ct. 885, 890-891, 31 L.Ed.2d 184 (1972); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969). In Zenith Radio Corp., 395 U.S. at 130, 89 S.Ct. at 1580, the Supreme Court reversed a court of appeals decision setting aside the district court’s grant of injunctive relief stating: The evident premise for striking [the injunctive relief] was that Zenith’s failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes in-junctive relief upon the demonstration of “threatened” injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur____ Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose" }, { "docid": "15474777", "title": "", "text": "that Rhodes defines the defense of immunity, and makes that defense available only to one who shows a reasonable, good faith belief in the legality of his actions. There may be a difference, in applicability of Rhodes, between the federal actions and the common law action. . See Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Intl. U. of Electr. Radio & Mach. Workers v. Robbins & Myers, 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976). . See cases cited in note 7, supra. See also Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). . We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission’s efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some circumstances, the administrative route may be highly preferred over the litigatory; under others, the reverse may be true. Johnson, supra, 421 U.S. at 461, 95 S.Ct. at 1720. . In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Zenith, supra, 401 U.S. at 339, 91 S.Ct. at 806. . Otherwise future damages that could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, contrary to the congressional purpose that private actions serve “as a bulwark of antitrust enforcement,”" }, { "docid": "15418893", "title": "", "text": "as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable. Moe Light, Inc. v. Foreman, 238 F.2d 817, 818 (C.A.6 1956); Chicago & N. W. R. Co. v. DeClow, 124 F. 142, 143 (C.A.8 1903); Culley v. Pennsylvania R. Co., 244 F. Supp. 710, 715 (D.C.Del.1965). Cf. Howard v. Stillwell & Bierce Mfg. Co., 139 U.S. 199, 206, 11 S.Ct. 500, 35 L. Ed. 147, 150 (1891). In antitrust and treble damages actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. Cf. Schenley Industries v. N. J. Wine & Spirit Wholesalers Association, 272 F.Supp. 872, 887-888 (D.C. N.J.1967); Delta Theaters, Inc. v. Paramount Pictures, Inc., supra, 158 F.Supp. at 648-649. Otherwise future damages which could not be proved within four years of the conduct from which they flowed would be forever incapable of recovery, contrary to the congressional purpose that private actions serve “as a bulwark of antitrust enforcement” and that the antitrust laws fully “protect the victims of the forbidden practices as well as the public.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 20 L.Ed.2d 982, 990, 88 S.Ct. 1981 (1968); Radovich v. National Football League, 352 U.S. 445, 454, 77 S.Ct. 390, 1 L.Ed.2d 456, 463 (1957). See also Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 329, 99 L. Ed. 1122, 1128, 75 S.Ct. 865 (1955).” Zenith, supra, 401 U.S. at 338-340, 91 S.Ct. at 806, 28 L.Ed.2d at 92-93. With respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years" }, { "docid": "20558054", "title": "", "text": "only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. (Emphasis added). Hence, injunctive relief can be predicated upon a present violation, and the fact that it also involves actual past injury only serves to strengthen plaintiff’s case. The remedies contained in Sections 4 and 16 cannot be neatly divided into past and future categories. This is demonstrated by the fact that a private litigant may bring an action based on a violation and secure a present award of damages, and equitable relief. More over, this same violation may provide the basis for an additional cause of action for damages in the future. Further, plaintiff’s view of the differences between Sections 4 and 16 of the Clayton Act does not provide a very good basis with which to analyze res judicata problems. In applying that doctrine, case law fails to support such an artificial distinction between suits at law and equity. The specific question of whether a prior suit for equitable relief bars a subsequent action for damages has been the subject of much litigation. While the results have not been entirely uniform, a common thread seems to run through those cases. If the cause of action is the same in both actions, the doctrine of res judicata will be applied. The recent case of Clarke v. Redeker, 406 F.2d 883 (8th Cir. 1969), serves as a good example. Plaintiff had sought to enjoin the enforcement of regulations by, the University of Iowa permitting the charging of higher tuition rates for nonresidents. That action was dismissed on the grounds that the ease presented no substantial federal question. In a subsequent action, the plaintiff attempted to recover a refund of his excess tuition payments as well as damages. The court responded: The cause of action here asserted is the same cause of action asserted in the earlier case. In both actions, Clarke seeks relief for the same wrong, to wit, denial to him of the resident tuition rate, and the same period of time is involved." }, { "docid": "3676329", "title": "", "text": "of financial loss becomes predictable, concrete and non-speculative and damages are provable.” Appellants’ Br. at 32. Thus, they argue that their claims did not accrue until Kidder indicated, in 1993 and 1994, that the investment funds were unlikely to be profitable. See Appellants’ Br. at 31. The Appellants rely heavily upon Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-42, 91 S.Ct. 795, 806-08, 28 L.Ed.2d 77 (1971), a case involving alleged antitrust violations. In Zenith Radio, the defendant raised a statute of limitations defense, and argued that many of the purported injuries arose from conduct that occurred more than four years before the plaintiff filed suit. The Supreme Court rejected the defendant’s argument. The Court held that at the time of the original misconduct, future damages were speculative and unclear and therefore unrecoverable. See id. at 339, 91 S.Ct. at 806. The Court noted that it would be “contrary to congressional purpose[s]” to foreclose recovery of those damages. It held that: [R]efusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. 401 U.S. at 339, 91 S.Ct. at 806. The Appellants argue that this case is factually similar to Zenith Radio, and that RICO damages were merely speculative at the time of their investment. For support, they cite a list of cases from the Second Circuit Court of Appeals and our recent decision in Maio v. Aetna, Inc., 221 F.3d 472 (3d Cir.2000). The District Court rejected the proposition that the Appellants were injured when “their investments resulted in a ‘catastrophic loss,’ that is, loss of capital gains from appreciation of the properties when they were sold.” App. at 42. Instead, the court ruled that the underlying claim was for securities fraud, and in such cases, an" } ]

[ { "docid": "22656088", "title": "", "text": "to be a witness against himself. We have held in Malloy v. Hogan, ante, p. 1, that the Fourteenth Amendment makes this provision applicable to the States. And we have held that this provision means that coerced confessions cannot be used as evidence to convict a defendant charged with crime. See, e. g., Haynes v. Washington, 373 U. S. 503; Chambers v. Florida, 309 U. S. 227; Brown v. Mississippi, 297 U. S. 278. It is our duty when a conviction for crime comes to us based in part on a confession to review the record to decide for ourselves whether that confession was freely and voluntarily given. In so doing we must reexamine the facts to be certain that there has been no constitutional violation, and our inquiry to determine the facts on which constitutional rights depend cannot be cut off by factfindings at the trial, whether'by judge or by jury. Blackburn v. Alabama, 361 U. S. 199, 205, n. 5; Payne v. Arkansas, 356 U. S. 560, 561-562; cf. United States ex rel. Toth v. Quarles, 350 U. S. 11, 18-19. In the present case the undisputed evidence showed: Petitioner committed a robbery in a hotel in New York. He ran from the place to get away, was accosted by a policeman, and after some words each shot the other. The policeman died. Petitioner caught a cab and went directly to a hospital, arriving there about 2 a. m. In response to a question he admitted that he had shot the policeman. By 3:35 a. m. he had lost a considerable amount of blood from serious gunshot wounds in his liver and one lung and was awaiting an operation which began about an hour later and lasted about two hours. At 3:55 he was given doses of demerol and scopolamine, which are sedative and relaxing in their effects. During all the time he was in the hospital policemen were there. He had no counsel present and no friends. Immediately after the demerol and scopol-amine were given him the assistant district attorney and a stenographer arrived. At the time" } ]

[ { "docid": "22111912", "title": "", "text": "and the petit jury that convicted him. 201 Miss. 410, 29 So. 2d 96. We granted certiorari to review this serious contention. 331 U. S. 804. Sixty-seven years ago this Court held that state exclusion of Negroes from grand and petit juries solely because of their race denied Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303 (1880). A long and unbroken line of our decisions since then has reiterated that principle, regardless of whether the discrimination was embodied in statute or was apparent from the administrative practices of state jury selection officials, and regardless of whether the system for depriving defendants of their rights was “ingenious or ingenuous.” Whether there has been systematic racial discrimination by administrative officials in the selection of jurors is a question to be determined from the facts in each particular case. In this case the Mississippi Supreme Court concluded that petitioner had failed to prove systematic racial discrimination in the selection of jurors, but in so concluding it erroneously considered only the fact that no Negroes were on the particular venire lists from which the juries were drawn that indicted and convicted petitioner. It regarded as irrelevant the key fact that for thirty years or more no Negro had served on the grand or petit juries. This omission seriously detracts from the weight and respect that we would otherwise give to its conclusion in reviewing the facts, as we must in a constitutional question like this. It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very strong showing that during that period Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination. The Mississippi Supreme Court did not conclude, the State did not offer" }, { "docid": "10192960", "title": "", "text": "conviction, finding that petitioner’s claim of jury discrimination was not supported by any evidence. We granted certiorari, 375 U. S. 893. Petitioner was convicted of the first degree murder of a white mechanic, the apparent motive being robbery. There were no witnesses to the killing and the evidence of guilt was circumstantial, based largely upon expert testimony given by the State’s toxicologist. Petitioner was represented by court-appointed counsel at trial but he obtained new counsel after conviction. In his motion for a new trial petitioner alleged that “Negroes qualified for jury service in Greene County, Alabama are arbitrarily, systematically and intentionally excluded from jury duty in violation of rights and privileges guaranteed defendant by the Fourteenth Amendment to the United States Constitution.” The petitioner does not attack the reasonableness of Alabama’s procedural requirement that objections to the composition of juries must be made before trial. Nor does he question the validity of such procedures as a state ground upon which refusal to consider the question might be based. However, in this case the judge granted petitioner a hearing on his motion for a new trial and permitted him to call two Circuit Solicitors as witnesses to prove his allegations of discrimination. Nonetheless, the judge sustained objections to all questions concerning systematic discrimination on the ground that the point was not raised prior to trial. On automatic appeal the Supreme Court of Alabama found that the trial judge had afforded petitioner “an opportunity on the hearing of the motion for a new trial to adduce evidence of any systematic exclusion . . . .” However, it found further that “none was introduced other than an affidavit of appellant’s mother that her son was indicted by a grand jury composed of white men, and tried and convicted by a petit jury composed of twelve white men.” It appears clear that the motion for a new trial alleged a practice of systematic exclusion which, if proved, would entitle petitioner to a new trial. Arnold v. North Carolina, 376 U. S. 773 (1964); Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. Georgia," }, { "docid": "4057595", "title": "", "text": "stay of execution pending resolution of the claims raised in the writ. Thereafter, a hearing was held on the issue of the constitutionality of the admittance of the psychiatric testimony used at the punishment phase of Larry Wayne White's trial. II. ISSUES RAISED IN THE WRIT OF HABEAS CORPUS Petitioner raises seven claims for relief based on alleged violations of petitioner’s constitutional rights. These are: 1. The testimony of a court-appointed psychiatrist and psychologist was admitted at the punishment phase of petitioner’s trial in violation of petitioner’s rights under the fifth, sixth, and fourteenth amendments. 2. Petitioner’s confession, obtained by police in violation of those rights secured by the fifth, sixth, and fourteenth amendments, was admitted at petitioner’s trial. 3. The ineffectiveness of court-appointed appellate counsel denied petitioner a meaningful appeal and, thus, abridged petitioner’s rights under the fifth, sixth, eighth, and fourteenth amendments. 4. Prospective jurors who expressed reservations regarding the assessment of the death penalty were systematically excluded from the jury. Thus, petitioner’s sixth, eighth, and fourteenth amendment rights were denied. 5. Texas capital sentencing procedures, as applied to petitioner’s case, violate the sixth, eighth, and fourteenth amendments. 6. Petitioner’s fifth and fourteenth amendment privilege against compulsory self-incrimination was abridged when he was extensively cross-examined regarding the instant offense at the punishment phase of his trial. 7. Petitioner was denied effective assistance of counsel at trial in violation of the sixth and fourteenth amendments. After consideration of the evidence and arguments advanced by the state and petitioner, this court has determined that the admission of the psychiatric testimony of Drs. Nottingham and Brown at the sentencing phase of Larry Wayne White’s trial violated petitioner’s constitutional rights to due process. Consequently, it is incumbent upon this court to grant the writ for habeas corpus relief. The Supreme Court has held, that the death penalty may only be imposed after a fair presentation of all the available evidence. Smith v. Estelle, 445 F.Supp. 647, 654 (N.D.Tex.1977); see Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Gregg v. Georgia, 428 U.S. 153, 190-195, 96" }, { "docid": "20943615", "title": "", "text": "the court could consider the records of the state proceedings and determine whether such hearing would be necessary, the court was following the guide laid down in Brown v. Allen, 344 U.S. 443, at page 502, 73 S.Ct. 397, 97 L.Ed. 469, et seq., directing the District Judges on the procedure to be followed in the disposition of applications for habeas corpus by prisoners under sentence of state courts. In the instant petition the petitioner claims that his conviction was obtained in violation of rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and was for that reason void. The petition contains five alleged violations of his constitutional rights, and they are, in substance, as follows: 1. It is the practice and custom in Arkansas for Negro men to receive death sentences for rapes committed upon white women whereas white men are not sentenced to die for rapes whether committed on white or Negro women and that this alleged practice and custom constitutes an unconstitutional application of the Arkansas rape statute which violates the due process and equal protection clauses of the Fourteenth Amendment. 2. Racial discrimination was practiced in the selection of the jury. 3. Petitioner’s confessions were obtained by coercion and other unlawful means and should not have been admitted into evidence. 4. Petitioner was insane at the time of the commission of the rape and is now insane. 5. Petitioner did not have the effective assistance of counsel in the course of the original proceedings against him. We now consider these allegations in the above order. I Ark.Stat.Ann. § 41-3403 (1947) provides in substance that any person convicted of rape shall suffer the punishment of death, or, if the jury so recommends, imprisonment for life. As indicated, petitioner contends that in practice this statute is so applied that Negro men who are convicted of rape upon white women usually receive the death sentence, whereas white rapists never receive the death sentence regardless of the race of their victims. This, it is said, amounts to a denial to Negro men of the equal protection" }, { "docid": "22111911", "title": "", "text": "the laws to this defendant as guaranteed by the 14th amendment to the U. S. Constitution.” In support of his motion petitioner introduced evidence which showed without contradiction that no Negro had served on the grand or petit criminal court juries for thirty years or more. There was evidence that a single Negro had once been summoned during that period but for some undisclosed reason he had not served, nor had he even appeared. And there was also evidence from one jury supervisor that he had, at some indefinite time, placed on the jury lists the names of “two or three” unidentified Negroes. In 1940 the adult colored population of Lauderdale County, according to the United States Census, was 12,511 out of a total adult population of 34,821. In the face of the foregoing the trial court overruled the motion to quash. The Supreme Court of Mississippi affirmed over petitioner's renewed insistence that he had been denied the equal protection of the laws by the deliberate exclusion of Negroes from the grand jury that indicted and the petit jury that convicted him. 201 Miss. 410, 29 So. 2d 96. We granted certiorari to review this serious contention. 331 U. S. 804. Sixty-seven years ago this Court held that state exclusion of Negroes from grand and petit juries solely because of their race denied Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303 (1880). A long and unbroken line of our decisions since then has reiterated that principle, regardless of whether the discrimination was embodied in statute or was apparent from the administrative practices of state jury selection officials, and regardless of whether the system for depriving defendants of their rights was “ingenious or ingenuous.” Whether there has been systematic racial discrimination by administrative officials in the selection of jurors is a question to be determined from the facts in each particular case. In this case the Mississippi Supreme Court concluded that petitioner had failed to prove systematic racial discrimination in the selection of jurors, but" }, { "docid": "12249686", "title": "", "text": "be remanded because of a recent decision by the Supreme Court of the United States, to-wit: Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, (1967). “Appellant alleged in the District Court that the grand and traverse juries which indicted, convicted and sentenced him to death were organized in violation of the Fourteenth Amendment to the United States Constitution. It was admitted by Respondent Appellee that the jurors were selected from a segregated tax digest; and that Bibb County had, in 1960, 32,053 white taxpayers’ and 7,940 colored taxpayers’ names on the tax digest from which 4,480 names were selected as traverse jurors. There were eighty-six colored traverse jurors included in the total prospective traverse jury list.” * * * * * “The evidence reveals that less than 2 per cent of the traverse jurors were Negro. The 25 per cent figure is derived from the percent of Negroes on the tax digest. Of the 190 jurors summoned for the December 1960 Term of Bibb County, two were Negroes and none were on the jury which tried and convicted Appellant.” . The following is from the trial brief of the Attorney General of Georgia filed in the district court on behalf of the respondent : “In holding that the petitioner was entitled to a State Court hearing on the question of the voluntariness of his confession, the United States Supreme Court held in Denno v. Jackson, supra, at 395, 396, 84 S.Ct. at 1774 that ‘[i]t is both practical and desirable that in oases to- he tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury. * * * ’ ” (Emphasis added in brief)" }, { "docid": "14683755", "title": "", "text": "consulted, as it had to be in order to ascertain that the persons tentatively selected were qualified electors. We felt that we could not say that, because the poll tax receipts and books designated race, it necessarily followed that every jury list in Arkansas was automatically unconstitutional; so to conclude would ignore the possibility of the selection being initially made, as the proof in Maxwell’s case showed, wholly apart from the poll tax list. We adhered to this conclusion in the later similar case, on this point, of Mitchell v. Stephens, supra, 353 F.2d 129, 133-134. Presumably, Maxwell and his counsel are not convinced of the rightness of our decision on this point in the first appeal. Nevertheless, the decision was made by a unanimous panel and the Supreme Court did not see fit to disturb it. Having decided the issue, we do not now undecide it in order to reach the opposite result. The point is repeated, moreover, by Maxwell and counsel on his second habe-as petition because, it is said, the granting of certiorari, limited to five questions, in Sims v. Georgia, 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013 (1966) [the same day certiorari was denied in Mitchell v. Stephens, supra] and the decision in Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), require reversal. Sims v. Georgia was also an interracial rape case with a Negro as defendant. The fourth question as to which certiorari was granted related to the constitutionality of a conviction where “local practice pursuant to state statute requires racially segregated tax books and county jurors are selected from such books”, where Negroes comprise only 5% of the jurors selected but about 20% of the taxpayers, and where the defendant offered to prove a practice of arbitrary and systematic Negro inclusion or exclusion based on jury lists of the prior ten years but his offer was disallowed. Sims’ conviction was reversed and his case remanded on the ground that a vol-untariness-of-confession issue was controlled by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12" }, { "docid": "22679603", "title": "", "text": "fair and reliable procedure for determining the voluntariness of his alleged coerced confession in disregard of the principle of Jackson v. Denno, 378 U. S. 368. “3. Whether petitioner’s Fourteenth Amendment right to counsel as declared in Escobedo v. Illinois, 378 U. S. 478, was violated by the use of his confession obtained during police interrogation in the absence of counsel, or whether petitioner’s right to counsel was effectively waived. “4. Is a conviction constitutional where: “(a) local practice pursuant to state statute requires racially segregated tax books and county jurors are selected from such books; “(b) the number of Negroes chosen is only 5% of the jurors but they comprise about 20% of the taxpayers; and “(c) a Negro criminal defendant’s offer to prove a practice of arbitrary and systematic Negro inclusion or exclusion based on jury lists of the prior ten years is disallowed? “5. Where a Negro defendant sentenced to death in Georgia for the rape of a white woman offers to prove that nineteen times as many Negroes as whites have been executed for rape in Georgia in an effort to show that racial discrimination violating the equal protection clause of the Fourteenth Amendment produced such a result, may this offer of proof be disallowed?” This disposition is in keeping with the teaching of Jackson, supra, that “a determination of . . . voluntariness” should occur initially “in the state courts in accordance with valid state procedures . . . before this Court considers the case on direct review or a petition for habeas corpus is filed in a Federal District Court.” 378 U. S., at 393." }, { "docid": "22718264", "title": "", "text": "Mr. Justice Rehnquist delivered the opinion of the Court. Twenty-five years ago respondent was indicted for the crime of first-degree murder by a grand jury in Davidson County, Tennessee. On the advice of counsel, he pleaded guilty and was sentenced to a term of 99 years in prison. Many years later he sought habeas corpus in both state and federal courts. In one petition in United States District Court, he contended that a confession he had given to the police had been coerced, and that he had been denied the effective assistance of counsel. The District Court considered these claims and decided them adversely to respondent, the Court of Appeals for the Sixth Circuit affirmed without opinion, and this Court denied certiorari. Henderson v. Henderson, 391 U. S. 927 (1968). Respondent then sought state habeas corpus, alleging for the first time that he was deprived of his constitutional right because Negroes had been excluded from the grand jury which indicted him in 1948. After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim by failure to raise it before pleading to the indictment, and by pleading guilty. Respondent then filed in the United States District Court the petition for habeas corpus which commenced the present litigation, asserting the denial of his constitutional right by reason of the systematic exclusion of Negroes from grand jury service. Petitioner, in effect, conceded such systematic exclusion to have existed, and the District Court so found. The issue upon which the District Court and the Court of Appeals focused was whether respondent’s failure to object to the indictment within the time provided by Tennessee law constituted a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury. At a state hearing, respondent testified that his lawyer did not inform him of his constitutional rights with respect to the composition of the grand jury, that he did not know how the grand jury was selected or that Negroes were systematically excluded, and that his attorney" }, { "docid": "22679602", "title": "", "text": "thought the confession voluntary or if the jury considered it as such in its determination of guilt. Jackson, having been decided June 22, 1964, was binding on the courts of Georgia in this case, it having been tried October 7, 1964. Such rule is, as we have said, a constitutional rule binding upon the States and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed. The judgment is, therefore, reversed and cause is remanded for a hearing as provided by Jackson v. Denno, supra, at 393-396. It is so ordered. Mr. Justice Black dissents for the reasons stated in his dissent in Jackson v. Denno, 378 U. S., at 401. The five questions are: “1. Whether petitioner’s Fourteenth Amendment rights were violated by a conviction and sentence to death obtained on the basis of a confession made under inherently coercive circumstances within the doctrine of Fikes v. Alabama, 352 U. S. 191. “2. Whether petitioner’s Fourteenth Amendment rights were violated by the failure of the Georgia courts to afford a fair and reliable procedure for determining the voluntariness of his alleged coerced confession in disregard of the principle of Jackson v. Denno, 378 U. S. 368. “3. Whether petitioner’s Fourteenth Amendment right to counsel as declared in Escobedo v. Illinois, 378 U. S. 478, was violated by the use of his confession obtained during police interrogation in the absence of counsel, or whether petitioner’s right to counsel was effectively waived. “4. Is a conviction constitutional where: “(a) local practice pursuant to state statute requires racially segregated tax books and county jurors are selected from such books; “(b) the number of Negroes chosen is only 5% of the jurors but they comprise about 20% of the taxpayers; and “(c) a Negro criminal defendant’s offer to prove a practice of arbitrary and systematic Negro inclusion or exclusion based on jury lists of the prior ten years is disallowed? “5. Where a Negro defendant sentenced to death in Georgia for the rape of a white woman offers to prove that nineteen times as many Negroes as whites have" }, { "docid": "22381544", "title": "", "text": "910, 295 S. W. 2d 312. He then applied to us for a writ of certiorari, based on these contentions, which we granted because the constitutional questions presented appeared to be substantial. 353 U. S. 929. We will first consider petitioner’s contention that the confession was coerced, and that its admission in evidence over his objection denied him due process of law, in violation of the Fourteenth Amendment. The use in a state criminal trial of a defendant’s confession obtained by coercion — whether physical or mental— is forbidden by the Fourteenth Amendment. Enforce ment of the criminal laws of the States rests principally with the state courts, and generally their findings of fact, fairly made upon substantial and conflicting testimony as to the circumstances producing the contested confession — as distinguished from inadequately supported findings or conclusions drawn from uncontroverted happenings — are not this Court’s concern; yet where the claim is that the prisoner’s confession is the product of coercion we are bound to make our own examination of the record to determine whether the claim is meritorious. “The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both.” The question for our decision then is whether the confession was coerced. That question can be answered only by reviewing the circumstances under which the confession was made. We therefore proceed to examine those circumstances as shown by this record. Near 6:30 p. m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon his head. More than $450 was missing from the cash drawer. Petitioner, a 19-year-old Negro with a fifth-grade education, who had been employed by Robertson for several weeks, was suspected of the crime. He was interrogated that night at his home by the police, but they did not then arrest him. Near 11 a. m. the next day, October 5, he was arrested without a warrant and placed in a cell on" }, { "docid": "22797616", "title": "", "text": "Mr. Justice Clark delivered the opinion of the Court. Petitioner, under sentence of death for the murder of his paramour, claims that his conviction in a California court violates Fourteenth Amendment due process of law because (1) the confession admitted into evidence over his objection had been coerced from him by state authorities, and (2) even if his confession was voluntary it occurred while he was without counsel because of the previous denial of his request therefor. The Supreme Court of California affirmed the conviction. 47 Cal. 2d 348, 303 P. 2d 753. Certiorari was granted because of the serious due process implications that attend state denial of a request to employ an attorney. 354 U. S. 908 (1957). We conclude, however, that no violation of constitutional right has occurred. The record here clearly reveals that prior to petitioner’s confession he asked for and was denied opportunity to call his lawyer. We first consider that denial in connection with petitioner’s contention that his subsequent confession was involuntary in nature. It is well established that the Fourteenth Amendment prohibits use of coerced confessions in state prosecutions. E. g., Brown v. Mississippi, 297 U. S. 278 (1936); Watts v. Indiana, 338 U. S. 49 (1949); Fikes v. Alabama, 352 U. S. 191 (1957). As in Thomas v. Arizona, 356 U. S. 390, and Payne v. Arkansas, 356 U. S. 560, both decided this Term, we consider the undisputed facts in the record to ascertain whether the confession resulted from police coercion or the exercise of petitioner’s own free will. The victim’s son discovered her body the morning of July 5, 1955, stabbed and strangled to death in the bedroom of her Los Angeles home. She was last known to be alive about 1 a. m. the same day, when she talked with a friend by telephone. Petitioner was arrested in his apartment at 1:30 that afternoon and subsequently was charged with the murder. He was then 31 years of age, a college graduate who had attended the first year of law school. While going to law school he had been a houseboy" }, { "docid": "14683756", "title": "", "text": "certiorari, limited to five questions, in Sims v. Georgia, 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013 (1966) [the same day certiorari was denied in Mitchell v. Stephens, supra] and the decision in Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), require reversal. Sims v. Georgia was also an interracial rape case with a Negro as defendant. The fourth question as to which certiorari was granted related to the constitutionality of a conviction where “local practice pursuant to state statute requires racially segregated tax books and county jurors are selected from such books”, where Negroes comprise only 5% of the jurors selected but about 20% of the taxpayers, and where the defendant offered to prove a practice of arbitrary and systematic Negro inclusion or exclusion based on jury lists of the prior ten years but his offer was disallowed. Sims’ conviction was reversed and his case remanded on the ground that a vol-untariness-of-confession issue was controlled by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and that the Supreme Court of Georgia had erred in holding that Jackson was not applicable. This was the second of the five certiorari questions. The Supreme Court therefore did not reach any of the issues raised by the other four questions. Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). The significance of the Sims case for Maxwell thus is that the Supreme Court was willing to grant, and did indeed grant, certiorari on a question related to racially segregated tax books, the selection of jurors from such books, the misproportion of negro jurors to negro taxpayers, and a disallowed offer of proof of arbitrary and systematic exclusion for ten years. Merely stating the question reveals the inapplicability of the fourth Sims question to Maxwell’s case. It is true that at the time of Maxwell’s trial, as we have repeatedly noted, Arkansas procedure called for racially designated elector lists. But as has already been pointed out, the uncontradicted proof in Maxwell’s case was that the" }, { "docid": "22381554", "title": "", "text": "is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though? there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment. The admitted facts, set out above, make applicable the conclusion reached in Chambers v. Florida, 309 U. S. 227, 241: “Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.\" The judgment must be reversed because of the admission in evidence of the coerced confession. It is therefore unnecessary at this time for us to discuss or decide the other question presented by petitioner — whether the overruling of his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel denied him the equal protection of the laws under the Fourteenth Amendment — for we will not assume that the same issue will be present upon a new trial. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. See, e. g., Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 U. S. 219; Ashcraft v. Tennessee, 322 U. S. 143; Malinski v. New York, 324 U. S. 401; Haley v. Ohio, 332 U. S. 596; Watts v. Indiana, 338 U. S. 49; Stroble v. California, 343 U. S. 181; Leyra v. Denno, 347 U. S. 556; Fikes v. Alabama, 352 U. S. 191. These cases illustrate the settled view of this Court that the admission in evidence over objection of a coerced confession vitiates a judgment of conviction. Watts v. Indiana, supra, at 50-53. Cf. Ashcraft v. Tennessee, supra, at 153; Malinski v. New York, supra, at 404;" }, { "docid": "22296344", "title": "", "text": "testimony would not, in fact, have rebutted petitioner’s. It needs no extended citation of cases to show that a confession produced by violence or threats of violence is involuntary and cannot constitutionally be used against the person giving it. Beecher v. Alabama, ante, p. 35. The reliance by the State on subsequent warnings made to petitioner prior to his confessing is misplaced. Petitioner had been in the continuous custody of the police for over eight hours and had not been fed at all during that time. He had not been given access to family, friends, or counsel at any point. He is an illiterate, with only a third grade education, whose mental capacity is decidedly limited. Under such circumstances the fact that the police may have warned petitioner of his right not to speak is of little significance. See Beecher v. Alabama, supra, at 37, n. 4. Compare Fikes v. Alabama, 352 U. S. 191 (1957). Petitioner also contends that he was indicted and tried by juries from which members of his race had been unconstitutionally excluded. The facts reveal that the grand and petit jury lists were drawn from the county tax digests which separately listed taxpayers by race in conformity with then existing Georgia law. Negroes constituted 24.4% of the individual taxpayers in the county. However, they amounted to only 4.7% of the names on the grand jury list and 9.8% of the names on the traverse jury list from which petitioner’s grand and petit juries were selected. The State’s only response to that showing was to call one of the jury commissioners as a witness; the jury commissioner testified that he or one of the other commissioners knew personally every qualified person in the county and did not discriminate in selecting names for the jury lists. The facts in this case make it virtually indistinguishable from Whitus v. Georgia, 385 U. S. 545 (1967). Accordingly, it is clear that the juries by which petitioner was indicted and tried were selected in a man ner that does not comport with constitutional requirements. See also Jones v. Georgia, ante," }, { "docid": "22540037", "title": "", "text": "Mr. Justice White delivered the opinion of the Court. The petitioner, Robert Swain, a Negro, was indicted and convicted of rape in the Circuit Court of Talladega County, Alabama, and sentenced to death. His motions to quash the indictment, to strike the trial jury venire and to declare void the petit jury chosen in the case, all based on alleged invidious discrimination in the selection of jurors, were denied. The Alabama Supreme Court affirmed the conviction, 275 Ala. 508, 156 So. 2d 368, and we granted certiorari, 377 U. S. 915. In support of his claims, petitioner invokes the constitutional principle announced in 1880 in Strauder v. West Virginia, 100 U. S. 303, where the Court struck down a state statute qualifying only white people for jury duty. Such a statute was held to contravene the central purposes of the Fourteenth Amendment: “exemption from unfriendly legislation against [Negroes] distinctively as colored, — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy . . . .” 100 U. S., at 308. Although a Negro defendant is not entitled to a jury containing members of his race, a State’s pur poseful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause. Ex parte Virginia, 100 U. S. 339; Gibson v. Mississippi, 162 U. S. 565. This principle was further elaborated in Carter v. Texas, 177 U. S. 442, 447, where, in respect to exclusion from grand juries, the Court said: “Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied . . . .” And it has been consistently and repeatedly applied in many cases coming before this Court. The principle of these cases is broadly based." }, { "docid": "22616816", "title": "", "text": "petitioners at the state trial made a timely motion to quash the indictment and challenged the array, alleging discrimination against Negroes in the selection of both grand and petit jurors in contravention of the guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what were alleged to be coerced confessions. Petitioners contend that the admission of these confessions violated their due process rights under the Fourteenth Amendment. They also urge that the refusal of the Supreme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until one day beyond the period of limitation, is a denial of equal protection under the Fourteenth Amendment. In their application to the District Court, petitioners repeated once again those federal constitutional questions which had earlier been presented to the sentencing court and the Supreme Court of North Carolina and which had also been repeated in their petition for certiorari filed in this Court. In examining the application, the District Court Judge studied the records of the trial and appellate courts of North Carolina, including a transcript of the proceedings in the sentencing court. He concluded that the findings of the judge of the sentencing court on the matter of whether the jury had been properly selected were supported by all the evidence and that it was not shown that there was a purposeful and systematic exclusion of Negroes solely on account of race. He also found that the trial judge correctly determined that the confessions were voluntary and that the instruction concerning the confessions was adequate. In addition the District Judge heard all evidence offered by the prosecution or defense. The District Court Judge did advert to the circumstance that this Court had denied a petition for certiorari on the same questions, and he further observed that to his mind the procedural history of the case did not make it appear that petitioners were denied the substance of a fair trial. He added that petitioners “failed to substantiate" }, { "docid": "22381543", "title": "", "text": "Mr. Justice Whittaker delivered the opinion of the Court. Petitioner, a 19-year-old Negro, was convicted by a jury in Jefferson County, Arkansas, of first degree murder and sentenced to dea/th by electrocution. On appeal to the Supreme Court of Arkansas he pressed two main contentions: (1) that the trial court erred in overruling his motion to suppress, and in receiving in evidence over his objection, a coerced and false confession, and that the error takes and deprives him of his life without due process of law in violation of the Fourteenth Amendment of the Constitution, and (2) that the trial court erred in overruling his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel, and that the error deprives him of the equal protection of the laws and of due process of law, in violation of the Fourteenth Amendment of the Constitution. The court held that these contentions were without merit and affirmed the judgment. 226 Ark. 910, 295 S. W. 2d 312. He then applied to us for a writ of certiorari, based on these contentions, which we granted because the constitutional questions presented appeared to be substantial. 353 U. S. 929. We will first consider petitioner’s contention that the confession was coerced, and that its admission in evidence over his objection denied him due process of law, in violation of the Fourteenth Amendment. The use in a state criminal trial of a defendant’s confession obtained by coercion — whether physical or mental— is forbidden by the Fourteenth Amendment. Enforce ment of the criminal laws of the States rests principally with the state courts, and generally their findings of fact, fairly made upon substantial and conflicting testimony as to the circumstances producing the contested confession — as distinguished from inadequately supported findings or conclusions drawn from uncontroverted happenings — are not this Court’s concern; yet where the claim is that the prisoner’s confession is the product of coercion we are bound to make our own examination of the record to determine" }, { "docid": "22616855", "title": "", "text": "after we denied certiorari on direct review of the state proceedings. The petition summarily recited the prior history of the litigation, and raised again the same federal question which had been passed upon by both North Carolina courts, and which had been offered to this Court on petition for certiorari, racial discrimination. The District Court heard all additional evidence the petitioner offered. This was in its discretion. Moore v. Dempsey, 261 U. S. 86; Dorr v. Burford, 339 U. S., at 214, cases which establish the power of federal district courts to protect the constitutional rights of state prisoners after the exhaustion of state remedies. It better enabled that court to determine whether any violation of the Fourteenth Amendment occurred. Petitioner’s charge of discrimination against Negroes in the selection of petit jurors in violation of his constitutional rights attacks the operation of the system used by the North Carolina authorities to select juries in Vance County, from which county a special venire was obtained to try petitioner. The charge rests on petitioner’s contentions (1) that no Negro within recent years had served on a jury in Vance County before this case, (2) that no Negro had been summoned to serve on a jury before this case, and (3) that the jury box in this case was so heavily loaded with names of white persons that the drawing could not fairly reflect a cross-section of those persons in the community qualified for jury service. Petitioner offered evidence to support each of these three contentions. The evidence establishes the correctness of contentions (1) and (2). They are inapplicable to this case, however, under the circumstances of the filling of this particular jury box. As is pointed out in Brown v. Allen, supra, at page 470, North Carolina in 1947 enlarged its pool of citizens eligible for jury service. General Statutes, North Carolina, § 9-1. In Vance County, where the special venire for Speller’s trial was drawn, the names of substantial numbers of Negroes appeared thereafter in the jury box. 145 Negroes out of a total of 2,126 names were in this jury" }, { "docid": "22679601", "title": "", "text": "first decide these conflicts and discrepancies. This he failed to do. Furthermore, Georgia’s highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of vol-untariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt. Jackson, having been decided June 22, 1964, was binding on the courts of Georgia in this case, it having been tried October 7, 1964. Such rule is, as we have said, a constitutional rule binding upon the States and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed. The judgment is, therefore, reversed and cause is remanded for a hearing as provided by Jackson v. Denno, supra, at 393-396. It is so ordered. Mr. Justice Black dissents for the reasons stated in his dissent in Jackson v. Denno, 378 U. S., at 401. The five questions are: “1. Whether petitioner’s Fourteenth Amendment rights were violated by a conviction and sentence to death obtained on the basis of a confession made under inherently coercive circumstances within the doctrine of Fikes v. Alabama, 352 U. S. 191. “2. Whether petitioner’s Fourteenth Amendment rights were violated by the failure of the Georgia courts to afford a" } ]

[ { "docid": "6827636", "title": "", "text": "a bounty from oil revenues). The district court did not err in finding that plaintiffs faced the possibility of irreparable harm. California does not argue on appeal that it would be unduly harmed by the preliminary injunction. II. Balancing the probability of success on the merits with the possibility of irreparable harm, we hold that the district court did not abuse its discretion in granting the preliminary injunction. Our prior affirmance in Green remains persuasive as to the probabifity of success on the merits, and as to the possibility that irreparable harm falls on the class Roe and Doe represent, but not on California. An appeal from the grant or denial of a permanent, rather than preliminary, injunction would entitle the parties to a full review on the merits. We reject California's invitation to engage in such a review of this case in its current posture, before the district court has had a chance to address the underlying merits upon a fully developed record. AFFIRMED. . A district court's order regarding preliminary injunctive relief is subject only to \"limited review.” The grant or denial of a preliminary injunction will be reversed “only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.\" Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996) (citing Miller v. California Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir.1994) (en banc)). Although we have previously suggested that issues of law underlying the district court’s decision on the preliminary injunction are reviewed de novo, Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir.1993), the Supreme Court has expressly rejected any multi-tiered standard of review for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990) (Rule 11). “Rather, an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination. A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of" } ]

[ { "docid": "16906055", "title": "", "text": "the state to negotiate compacts with the tribes or force the state to permit tribal gambling if state law prohibits gambling in general. Id. 830 F.Supp. at 526-27. Further the district court found the state negotiated with the tribe in good faith — that bet limits are set by state law, video keno and traditional keno are not the same game and state law does not permit traditional keno, and there are genuine issues of material fact in dispute about whether the Fort Pierre and Pluma lands are Indian lands within the meaning of the IGRA. Id. 830 F.Supp. at 527-29. For these reasons, the district court denied the tribe’s motions for preliminary injunctive relief and summary judgment and the state’s motion for summary judgment, and stayed the action to accommodate further negotiations. This appeal by the tribe and cross-appeal by the state followed. The tribe argues the district court abused its discretion in denying its motions for summary judgment and for preliminary injunc-tive relief because it misconstrued the IGRA requirement of good faith and the IGRA definition of Indian lands. The state argues the district court erred by not applying eleventh amendment immunity to this issue and by not holding the IGRA unconstitutional under the tenth amendment. This court has appellate jurisdiction over the order denying the motion for preliminary injunctive relief pursuant to 28 U.S.C. § 1292(a)(1). In addition, we may review the order denying both motions for summary judgment as well because “where the injunction is interdependent with the remainder of the appealed order, we may review the entire order insofar as it has been appealed.” Union National Bank v. Federal National Mortgage Ass’n, 860 F.2d 847, 852 (8th Cir.1988) (order dismissing tortious interference and RICO claims considered with order denying preliminary injunction); see also TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 680 (9th Cir.1990) (denial of summary judgment considered with injunction). We review the denial of injunctive relief for an abuse of discretion. Tenant Affairs Bd. v. Pierce, 693 F.2d 797, 798 (8th Cir.1982); Sperry Corp. v. City of Minneapolis, 680 F.2d" }, { "docid": "14877031", "title": "", "text": "the California Code and replacing her claim of “constructive termination” with one of “direct termination.” MacMillan responded with a second motion to dismiss, contending that even as amended the complaint failed to meet the requirements of Rule 8. Judge Ware denied the motion and MacMillan filed an answer. After the case was reassigned to Judge Aguilar, Hill asked MacMillan to stipulate that she could correct a typographical error (changing the word “mole” to “moll”) in the amended complaint. MacMillan refused. The court nevertheless granted Hill leave to file a second amended complaint to correct the typographical error. MacMillan, in turn, filed a third motion to dismiss under Rule 8 that was virtually identical to the one denied by Judge Ware. When the court questioned why sanctions should not be imposed for doing so, MacMillan argued that renewing the same motion was proper because the action had been transferred to a new judge and the court had implicitly invited the motion by indicating that denial of the Rule 8 motion was without prejudice to MacMillan’s filing responsive pleadings. Hill then moved for Rule 11 sanctions. The court found that the third Rule 8 motion had been filed with an improper purpose, and ordered MacMillan and its counsel, Gordon and Morgan, to pay $3,827.45 in attorneys’ fees and costs to Daniel Robert Bartley, Hill’s lawyer. Because the sanction was above $1,000, Gordon and Morgan were required under Cal.Bus. & Prof.Code § 6068(o)(3) to report the sanction to the California State Bar. MacMillan, and Gordon and Morgan, filed a notice of appeal from the sanctions order alone. II MacMillan, Gordon and Morgan argue that the sanctions order is a collateral order over which we have jurisdiction under Riverhead Savings Bank v. National Mortgage Equity Corp., 893 F.2d 1109, 1113-14 (9th Cir.1990), because the order is immediately payable, resolves an important issue separate from the merits, and cannot be reviewed as it is payable to a non-party. Hill contends that we lack jurisdiction since an order imposing sanctions upon both a party and its attorneys is not a final order under Kordich v. Marine" }, { "docid": "21722607", "title": "", "text": "information. He issued a preliminary injunction on April 12, 1985, ordering the release of all requested information save that related to collective bargaining negotiations. All other requested relief was denied. On April 15, 1985, Judge John J. Gibbons of this Court entered an interim stay of the district court order in all respects until a panel of this Court could hear any appeal; on April 30, 1985 this Court issued its own stay pending the appeal, and on June 7, 1985 it granted a motion expediting the appeal. We have jurisdiction to review the district court's order granting in part and denying in part a preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1) (1982). II. A district court’s decision to issue a preliminary injunction is committed to its sound discretion, and must be affirmed unless the court has abused its discretion, committed an obvious error in applying the law, or made a serious mistake in considering the proof. United States v. Price, 688 F.2d 204, 210 (3d Cir.1982). An abuse of discretion is a “clear error of judgment,” and not simply a different result which can arguably be obtained when applying the law to the facts of the case. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). In deciding whether to provide preliminary relief, the district court must consider the probability of irreparable injury to the moving party in the absence of such relief, the possibility of harm to the non-moving party if relief is granted, the likelihood that the moving party will ultimately succeed on the merits, and the public interest. Price, supra, 688 F.2d at 211. The issuance of preliminary injunctions in cases involving labor disputes is subject to special procedural requirements imposed by the Norris-LaGuardia Act. Notably, Section 7 of the Act, 29 U.S.C. § 107 (1982), mandates that no injunction shall issue “except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered" }, { "docid": "13321801", "title": "", "text": "stay its order and enjoin the enforcement of H.B. 2023 pending appeal. The district court noted that the standard for obtaining an injunction pending appeal was the same as the standard for obtaining a preliminary injunction and denied the motion because Feldman had not shown that she was likely to succeed on the merits, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), or that “there are serious questions going to the merits” and “the balance of hardships tips sharply in the plaintiffs favor.”' All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Feldman filed an emergency motion with this court for an injunction pending appeal and for an expedited appeal. On October 14, a motions panel denied the former request, but granted the latter. The parties were directed to.file simultaneous, merits briefs by October 17, and the appeal was argued orally on October 19. II We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). On an appeal from the denial of a preliminary injunction, we do not review the underlying merits of the claims. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). Instead, “[o]ur review is limited and deferential,” id. and we must affirm the district court’s order unless the district court abused its discretion. Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1139 (9th Cir. 2005). Our abuse-of-discretion analysis proceeds in two steps. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1105-06 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)). At step one, we ask whether the district court “based its ruling on an erroneous view of the law,” Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999), reviewing the district court’s interpretation of underlying legal principles de novo, Shelley, 344 F.3d at 918. We then ask whether the district court’s application of the legal standard was illogical, implausible, or otherwise without" }, { "docid": "6967211", "title": "", "text": "PER CURIAM. Karen R. Lunde appeals from several orders entered in the District Court for the Southern District of Iowa denying her request for preliminary injunctive relief, denying her motion to disqualify defense counsel, and staying proceedings in federal court pending disposition of certain on-going state administrative and judicial proceedings. For the reasons discussed below, we hold that we lack jurisdiction to review the orders denying the motion to disqualify counsel and staying proceedings in federal court and dismiss that part of the appeal for lack of jurisdiction. Treating this part of the appeal as a petition for writ of mandamus, we hold that the district court did not abuse its discretion in denying the motion to disqualify counsel or in granting the stay. We also hold that the district court did not abuse its discretion in denying preliminary injunctive relief and accordingly affirm that part of the appeal. Plaintiff was a third-year medical student. According to defendants, she was dismissed for poor clinical performance. In February 1989 plaintiff filed a 42 U.S.C. § 1983 complaint against defendants seeking declaratory and injunctive relief. She alleged that she had been wrongfully dismissed. Plaintiff dismissed her initial complaint and refiled, alleging sex discrimination. On February 16, 1989, the district court denied her request for a preliminary injunction. Defendants then filed motions to dismiss. Plaintiff filed a Fed.R.Civ.P. 60(b) motion on the ground of fraudulent misrepresentation and a second request for preliminary injunctive relief. On March 30, 1989, the district court denied the Rule 60(b) motion. Plaintiff filed a notice of appeal on April 4, 1989. On May 4, 1989, this court dismissed as untimely filed that part of the appeal involving the denial of preliminary injunctive relief but permitted the appeal from the denial of the Rule 60(b) motion to proceed. On December 7, 1989, this court affirmed the district court’s denial of the Rule 60(b) motion. Lunde v. Helms, 894 F.2d 1341 (8th Cir.1989) (per curiam). In the meantime, in August 1989, plaintiff filed an amended complaint alleging that she had been discriminated against because of her sex, dismissed from medical" }, { "docid": "6451892", "title": "", "text": "motion for this court to dismiss the appeal for lack of jurisdiction. Kraft argued that (1) the appeal is premature because the district court’s stay order is not a final judgment on the merits and does not expressly deny an injunction; and (2) P & G cannot demonstrate that it will suffer irreparable harm without an immediate appeal. A motions panel of the court denied Kraft’s motion to dismiss, reasoning that (1) the district court’s statement characterizing P & G’s preliminary injunction motion as moot might be an express denial; and (2) “an order argued to have the effect of denying a request for a preliminary injunction ‘readily satisfies’ the requirement to show irreparable harm.” Procter & Gamble Co. v. Kraft Food Global, Inc., No.2008-1150, slip op. at 2 (Fed.Cir. Feb. 28, 2008) (quoting Woodard v. Sage Products, Inc., 818 F.2d 841, 851 (Fed.Cir.1987) (en banc)). The court also noted that the parties remained free to present jurisdictional arguments to a merits panel for an ultimate disposition. Id. at 2. As set forth below, we conclude that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(c)(1). DISCUSSION When jurisdiction is proper, a district court’s decision to issue a stay is reviewed for an abuse of discretion. See Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed.Cir.1983); cf. Am. Life Ins. Co. v. Stewart, 300 U.S. 203, 215, 57 S.Ct. 377, 81 L.Ed. 605 (1937) (“In the exercise of a sound discretion [the district court] may hold one lawsuit in abeyance to abide the outcome of another, especially where the parties and the issues are the same.”). We also review the denial of a preliminary injunction for an abuse of discretion. See Chamberlain Group, Inc. v. Lear Corp., 516 F.3d 1331, 1339 (Fed.Cir.2008); Novo Nordisk of N. Am., Inc. v. Genentech, Inc.; 77 F.3d 1364, 1367 (Fed. Cir.1996). “An abuse of discretion in granting or denying a preliminary injunction may be found ‘by showing that the court made a clear error of judgment in weighing relevant factors or exercised its discretion based on an error of law" }, { "docid": "21758829", "title": "", "text": "the Court believed that Ms. Stephens’ motion may have violated Rule 11. The magistrate judge entered a written Order dated June 5, 2001, requiring Ms. Stephens and her attorney to show cause why they should not be sanctioned under Rule 11 for filing the motion for preliminary injunction. Ms. Stephens has appealed the magistrate judge’s Order and the Trustee has filed a motion to dismiss Ms. Stephens’ complaint in the District Court. Those items are still pending. Now before us is Alexander’s appeal of the Bankruptcy Court’s denial of his Rule 60(b) and 11 U.S.C. § 105 motion. STANDARD OF REVIEW The standard of review for a denial of a Rule 60(b) motion is whether the Bankruptcy Court abused its discretion; this review does not include review of the underlying decision which was not appealed. Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 842 (8th Cir.1993); In re Yukon Energy Corp., 227 B.R. 150, 151-52 (8th Cir. BAP 1998). The denial of a request pursuant to 11 U.S.C. § 105 is also reviewed under an abuse of discretion standard. See McGowan v. Ries (In re McGowan), 226 B.R. 13, 16 (8th Cir. BAP 1998). DISCUSSION Alexander bases his appeal on two primary points: (1) that the Bankruptcy Court, throughout the various proceedings in his case, erred in concluding that he could not claim the 875 Laurel property exempt as his own homestead; and (2) that the proceedings by the Trustee and the Bankruptcy Court in attempting to recover the 875 Laurel property in his case are void ab initio because they violated the automatic stay and discharge injunction in his wife’s bankruptcy cases. Alexander cannot prevail here under either theory, primarily because he is either re-hashing arguments which have already been decided and affirmed by other courts or which should have been raised in the earlier proceedings. As to the first point, Alexander correctly asserts that, as a general proposition, claimed exemptions are presumed to be valid and the Trustee bears the burden of proving that an exemption is invalid. Alexander incorrectly claims, however, that the Trustee" }, { "docid": "6967212", "title": "", "text": "complaint against defendants seeking declaratory and injunctive relief. She alleged that she had been wrongfully dismissed. Plaintiff dismissed her initial complaint and refiled, alleging sex discrimination. On February 16, 1989, the district court denied her request for a preliminary injunction. Defendants then filed motions to dismiss. Plaintiff filed a Fed.R.Civ.P. 60(b) motion on the ground of fraudulent misrepresentation and a second request for preliminary injunctive relief. On March 30, 1989, the district court denied the Rule 60(b) motion. Plaintiff filed a notice of appeal on April 4, 1989. On May 4, 1989, this court dismissed as untimely filed that part of the appeal involving the denial of preliminary injunctive relief but permitted the appeal from the denial of the Rule 60(b) motion to proceed. On December 7, 1989, this court affirmed the district court’s denial of the Rule 60(b) motion. Lunde v. Helms, 894 F.2d 1341 (8th Cir.1989) (per curiam). In the meantime, in August 1989, plaintiff filed an amended complaint alleging that she had been discriminated against because of her sex, dismissed from medical school as punishment for exercising her first amendment rights, and denied due process. She again sought declaratory and injunctive relief as well as monetary damages. She specifically renewed her request for preliminary injunctive relief and sought to disqualify defense counsel on the ground of conflict of interest. On August 31, 1989, the district court denied the motion to disqualify counsel, denied preliminary in-junctive relief, denied defendants’ motion to dismiss, and stayed the case pending resolution of the on-going state administrative and judicial review proceedings. This appeal followed. MOTION TO DISQUALIFY COUNSEL We lack appellate jurisdiction over the order denying the motion to disqualify counsel. Such an order is not final and does not fall within the collateral order exception. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-79, 101 S.Ct. 669, 672-76, 66 L.Ed.2d 571 (1981). We dismiss this part of the appeal for lack of jurisdiction. Treating this part of the appeal as a petition for writ of mandamus, we hold there are no exceptional circumstances which warrant extraordinary relief and" }, { "docid": "21758828", "title": "", "text": "on April 30, 2001, Ms. Stephens, represented by counsel, commenced an action in the United States District Court for the District of Minnesota on her own behalf and the behalf of her minor son against the Trustee herein, claiming that she had exempted the 875 Laurel property as her homestead in her bankruptcy cases and that the Trustee’s attempt to take possession of the property and liquidate it for the benefit of Alexander’s bankruptcy estate violated the discharge injunction and automatic stay in her case, as well as her constitutional rights to her homestead under Minnesota law. In conjunction with this action in the District Court, Ms. Stephens filed a motion for temporary injunction seeking to enjoin the Trustee from evicting her and her son from the residence. That motion was heard by a magistrate judge on June 1, 2001, at which time the magistrate judge refused to grant the injunctive relief, indicating on the record that Ms. Stephens had not properly claimed the residence as her homestead in her bankruptcy cases and stating that the Court believed that Ms. Stephens’ motion may have violated Rule 11. The magistrate judge entered a written Order dated June 5, 2001, requiring Ms. Stephens and her attorney to show cause why they should not be sanctioned under Rule 11 for filing the motion for preliminary injunction. Ms. Stephens has appealed the magistrate judge’s Order and the Trustee has filed a motion to dismiss Ms. Stephens’ complaint in the District Court. Those items are still pending. Now before us is Alexander’s appeal of the Bankruptcy Court’s denial of his Rule 60(b) and 11 U.S.C. § 105 motion. STANDARD OF REVIEW The standard of review for a denial of a Rule 60(b) motion is whether the Bankruptcy Court abused its discretion; this review does not include review of the underlying decision which was not appealed. Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 842 (8th Cir.1993); In re Yukon Energy Corp., 227 B.R. 150, 151-52 (8th Cir. BAP 1998). The denial of a request pursuant to 11 U.S.C. § 105 is also" }, { "docid": "23013177", "title": "", "text": "the subject appeal for lack of jurisdiction under 28 U.S.C. § 1292(c)(1) is granted. Woodard’s arguments supporting the appealability of the district court’s order are not frivolous. Each party shall bear their own costs and attorney fees. DISMISSED. EDWARD S. SMITH, Circuit Judge, concurs in the result. . While the interlocutory order was appealable because it was held to fail within the statutory provision permitting immediate appeal of an injunctive order, the issue decided was not injunctive relief vel non, but rather, the propriety of dismissal for lack of venue. . In Chappell & Co. v. Frankel, 367 F.2d 197, 200 (2d Cir.1966) (in banc), the court overruled Federal Glass, justifying its action on the enactment of subsequent legislation, namely, the Interlocutory Appeals Act of 1958, codified as amended at 28 U.S.C. § 1292(b) (1982 & Supp. III 1985). . Similarly, Judge Friendly, dissenting in Stewart-Warner Corp. v. Westinghouse Elec. Corp., 325 F.2d 822, 830, 140 USPQ 1, 6 (2d Cir.1963), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964), noted that the statute’s literal import had become broader because of non-substantive language changes which tended \"to obscure the original aim,” characterizing this effect as \"drafting erosion.” . In the decision reviewed by the Court, Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 351 F.2d 552, 554 (1st Cir.1965), aff’d, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), that circuit in rejecting appealability had concluded: Furthermore, we think that the additional opportunity afforded by section 1292(b) for interlocutory appeals under controlled conditions enacted since the original decisions in the Second Circuit makes strict construction of the other sections all the more desirable. . Given the interpretation that § 1292(a)(1) is not limited to orders specifically directed to the grant or denial of a preliminary injunction, appeals have been attempted from virtually every type of order of a district court. See, e.g., United States v. Ryan, 402 U.S. 530, 534, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971) (order requiring party to seek permission from Kenyan government before removing discovery documents from that country not" }, { "docid": "900636", "title": "", "text": "has exhausted her administrative remedies, the district court will know whether she is an appropriate class representative, what the IBLA’s position is on the five-year use and occupancy requirement, and whether the IBLA will interpret its regulations as Eluska asks. When the district court rules on the merits of those issues, there will be a final judgment ap-pealable to this court. DENIAL OF SUMMARY JUDGMENT: Appellant argues alternatively that the denial of summary judgment amounted to an interlocutory order denying or modifying an injunction, appealable under 28 U.S.C. § 1292(a)(1) (1970). She cites cases in which courts state that an order denying summary judgment is appealable if its effect is to deny a request for a preliminary injunction. Safe Flight Instrument Corp. v. McDonnell-Douglas Corp., 482 F.2d 1086, 1093 (9th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 843, 38 L.Ed.2d 740 (1973); Gardner v. Moon, 360 F.2d 556, 558 n. 2 (8th Cir. 1966); Jamieson v. Folsom, 311 F.2d 506, 507 (7th Cir.), appeal dismissed and cert. denied, sub nom. Jamieson v. Celebrezze, 374 U.S. 487, 83 S.Ct. 1868, 10 L.Ed.2d 1043 reh. denied, 375 U.S. 871, 84 S.Ct. 31, 11 L.Ed.2d 100 (1963). The cited cases are inapposite because appellant requests permanent, not preliminary injunctive relief. Switzerland Cheese Assoc., Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193,17 L.Ed.2d 23 (1966). Although she could have obtained judicial review under § 1292(a)(1) if the district court judge had held that permanent injunctive relief was not available, Loya v. Immigration & Naturalization Service, No. 75-2826, 583 F.2d 1110 (9th Cir. 1978), in this case the judge did not rule directly upon the availability of injunctive relief. Appellant argues, however, that an order denying partial summary judgment is also appealable under § 1292(a)(1) if it restricts the scope of the injunctive relief she requests. In her complaint, she asks for broad injunctive relief on behalf of the class of Alaska Natives she seeks to represent. However, it is only denial of her summary judgment motion which she attempts to appeal. In that motion, she requested declaratory relief" }, { "docid": "3667891", "title": "", "text": "the equities strongly favored either side. Plaintiffs appealed. Revision of Defendants’ Policy While Plaintiffs’ appeal was pending, Defendants revised their policy. Under Defendants’ revised policy, the Motor Vehicle Division still refuses to accept Employment Authorization Documents with category code (c)(33) — i.e., Employment Authorization Documents issued under DACA — as proof of authorized presence. Now, however, the Motor Vehicle Division also refuses to accept Employment Authorization Documents with category codes (c)(14) (issued to recipients of other forms of deferred action, see 8 C.F.R. § 274a.l2(c)(14)) and (a)(ll) (issued to recipients of deferred enforced departure, see 8 C.F.R. § 274a.l2(a)(ll)). Defendants contend that, as revised, their policy does not violate the Equal Protection Clause. JURISDICTION We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). STANDARD OF REVIEW We review the district court’s denial of a preliminary injunction for abuse of discretion. Sw. Voter Registration Edue. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc). “A court abuses its discretion when it applies an incorrect legal rule or relies upon a factual finding that is illogical, implausible, or without support in inference that may be drawn from the record.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1014 (9th Cir. 2013) (internal quotation marks and alterations omitted). DISCUSSION “A plaintiff seeking a preliminary injunction must establish that he [or she] is likely to succeed on the merits, that he [or she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his [or her] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Plaintiffs here have made all four of these showings. Before we discuss the Winter factors, however, we must decide whether Plaintiffs’ requested injunction is mandatory or prohibitory. I. Type of Injunction Sought Defendants argue that Plaintiffs’ requested injunction is mandatory, and thus subject to a heightened burden of proof. Defendants are mistaken. “A mandatory injunction orders a responsible party to take action,” while “[a] prohibitory injunction prohibits a" }, { "docid": "21722606", "title": "", "text": "held a hearing at which he heard arguments on March 25, 1985 from counsel representing the parties, considered briefs filed by the parties during the following week, and then announced his opinion from the bench on April 8, 1985. He decided that the contract is unambiguous, rejecting Western Union’s contention that the agreement preserved the company’s managerial prerogatives, and ruling that the unions must be provided with all requested information. The judge denied Western Union’s request for an evidentiary hearing at which witnesses could testify, stating that the Norris-LaGuardia Act does not require an evidentiary hearing before issuance of an injunction in a labor dispute if the disputed contract is unambiguous. One conflict was perceived by the district court as inherent in the contract: “the agreement never contemplated ... that management would have to show to the Union documents which reflected on the management’s strategy for later collective bargaining between itself and the Union.” App. at 316a. Therefore, the judge ruled that such documents may be withheld, pending his in camera review of all such information. He issued a preliminary injunction on April 12, 1985, ordering the release of all requested information save that related to collective bargaining negotiations. All other requested relief was denied. On April 15, 1985, Judge John J. Gibbons of this Court entered an interim stay of the district court order in all respects until a panel of this Court could hear any appeal; on April 30, 1985 this Court issued its own stay pending the appeal, and on June 7, 1985 it granted a motion expediting the appeal. We have jurisdiction to review the district court's order granting in part and denying in part a preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1) (1982). II. A district court’s decision to issue a preliminary injunction is committed to its sound discretion, and must be affirmed unless the court has abused its discretion, committed an obvious error in applying the law, or made a serious mistake in considering the proof. United States v. Price, 688 F.2d 204, 210 (3d Cir.1982). An abuse of discretion is a “clear" }, { "docid": "14877032", "title": "", "text": "responsive pleadings. Hill then moved for Rule 11 sanctions. The court found that the third Rule 8 motion had been filed with an improper purpose, and ordered MacMillan and its counsel, Gordon and Morgan, to pay $3,827.45 in attorneys’ fees and costs to Daniel Robert Bartley, Hill’s lawyer. Because the sanction was above $1,000, Gordon and Morgan were required under Cal.Bus. & Prof.Code § 6068(o)(3) to report the sanction to the California State Bar. MacMillan, and Gordon and Morgan, filed a notice of appeal from the sanctions order alone. II MacMillan, Gordon and Morgan argue that the sanctions order is a collateral order over which we have jurisdiction under Riverhead Savings Bank v. National Mortgage Equity Corp., 893 F.2d 1109, 1113-14 (9th Cir.1990), because the order is immediately payable, resolves an important issue separate from the merits, and cannot be reviewed as it is payable to a non-party. Hill contends that we lack jurisdiction since an order imposing sanctions upon both a party and its attorneys is not a final order under Kordich v. Marine Clerks Ass’n, 715 F.2d 1392, 1393 (9th Cir. 1983). We agree with Hill that this is a Kordich order, and that it does not meet the limited exception recognized in Riverhead when the party to whom the sanctions are awarded is (or is about to become) insolvent. In Kordich, sanctions were jointly and severally imposed on a law firm and its clients for filing a frivolous motion. We had previously held that an order which imposes liability only on a non-party is immediately ap-pealable as a final order, whereas an order that runs only to the party is not. Id. (contrasting Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647 (9th Cir.1982) (non-party) with Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir. 1980) (party)). Because the congruence of interests between attorney and client is so great, we saw “no reason to permit indirectly through the attorney’s appeal what the client could not achieve directly on its own: immediate review of interlocutory orders imposing liability for fees and costs.”" }, { "docid": "15132607", "title": "", "text": "it never did so. Instead, Lamar appeals from the denial of injunctive relief pursuant to 28 U.S.C. § 1292(a)(1). Orchard Park cross-appeals only insofar as it asks this Court to affirm the district court’s decision on mootness and standing, and dismiss the case for lack of subject matter jurisdiction. Though the parties expend significant energy on appeal debating the merits of Lamar’s claims against the ordinance — both before and after amendment — our decision addresses only the district court’s rulings on mootness and standing. DISCUSSION I. Appellate Jurisdiction We must deal at the outset with the question of what issues properly are within our jurisdiction on appeal. Because there was no final judgment below and Lamar never sought certification of an interlocutory appeal under 28 U.S.C. § 1292(b), Lamar appeals only from the denial of its motion for a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). Orchard Park argues that the scope of our review, therefore, is limited to whether the district court abused its discretion in denying Lamar’s request for preliminary injunction, and that we cannot revisit the district court’s summary judgment rulings on standing and mootness. We disagree. Although a district court’s ruling on summary judgment is ordinarily not appealable absent a final judgment, we have held that, where our jurisdiction is properly founded upon the district court’s ruling on a preliminary injunction under 28 U.S.C. § 1292(a)(1), our review “extends to ‘all matters inextricably bound up with the [preliminary injunction].’ ” SEC v. Credit Bancorp, Ltd., 290 F.3d 80, 86-87 (2d Cir.2002) (quoting SEC v. Black, 163 F.3d 188, 194 (3d Cir.1998)) (asserting jurisdiction over partial summary judgment ruling that certain assets could be liquidated and distributed as part of a receivership estate, where the basis for appellate jurisdiction was the district court’s modification of a prior preliminary injunction unfreezing the estate for distribution); see also Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (suggesting courts of appeals may exercise pendent jurisdiction where an issue is “inextricably intertwined” with an issue over which the court properly has" }, { "docid": "5211380", "title": "", "text": "the expiration of the 10-day period for Rule 59(e) motions), the district court denied the motion on April 2, 2009. The Elustras now appeal. II The Elustras have asked this court to decide whether the district court correctly found that the parties reached a binding settlement agreement, under which the case would be dismissed with prejudice in exchange for a global payment of $6,000. The defendants, however, argue that we cannot review that decision directly. In their view, the only question properly before us is whether the district court abused its discretion when it denied the motion to reconsider. Thus, there are at least two preliminary questions before us: first, was the district court correct to treat the January 7 filing as the first motion to reconsider, and thus one filed under Rule 60(b), or did it have before it a timely Rule 59(e) motion, thanks to Lopez’s December 29 filing; second, if we are to use the December 29 motion as our point of reference, was it effective to postpone the 30-day period for filing a notice of appeal? If the answer to that is yes, then we may reach the merits of the dispute over the settlement agreement. Otherwise, we would consider only the question whether the district court abused its discretion in rejecting plaintiffs’ request for reconsideration. A Although the defendants never raised the issue, we were concerned about Lopez’s apparent effort directly to represent, without counsel, both her minor daughters and her adult daughter when she filed the December 29 motion. We therefore requested supplemental briefing on this question. Normally, representative parties such as next friends may not conduct litigation pro se; pleadings may be brought before the court only by parties or their attorney. See 28 U.S.C. § 1654 (providing that “parties may plead and conduct their own cases personally or by counsel”); Fed.R.Civ.P. 11(a) (requiring that every motion be signed by an attorney or a party proceeding pro se). See also Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir.1986) (per curiam). Lopez is neither a party nor an attorney. This means" }, { "docid": "22104162", "title": "", "text": "a trademark infringement action against Sportswear under the Lanham Act, 15 U.S.C. §§ 1051-1127. The district court granted Sportswear’s motion to dismiss for lack of personal jurisdiction and venue. On appeal, a panel of this circuit reversed, and remanded the case to the district court for a trial on the merits. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384 (8th Cir.1991). Industries then filed a motion for a preliminary injunction. After a hearing, the district court denied the motion. This decision was based on an analysis of one of Sportswear’s Dakota marks. The district court did not know of the two other Dakota marks employed by Sportswear, and therefore did not consider or evaluate these other marks when ruling on Industries’ motion for a preliminary injunction. Thus, the district court’s decision to deny a preliminary injunction was based on an incomplete analysis of the situation between the parties. II. DISCUSSION A district court has broad discretion when ruling on requests for preliminary injunctions, and we will reverse only for clear error, an error of law, or an abuse of discretion. General Mills Inc. v. Kellogg Co., 824 F.2d 622, 625 (8th Cir.1987). Ordinarily, we defer to the discretion of the district court and accept its conclusions of fact unless they constitute an abuse of discretion. However, this ease is not at all ordinary. While the district court did not abuse its discretion, it suffered under a misconception that prevented a genuine application of that discretion to all facets of this case. Photographs attached to Appellant’s Reply Brief clearly document that Sportswear employed at least three different marks bearing the name Dakota. The district court based its denial of Industries’ motion for a preliminary injunction, at least in part, on an analysis of what it believed to be Sportswear’s only mark. Before we review the district court’s denial of Industries’ motion for a preliminary injunction we must resolve the issue of whether we can consider evidence on appeal that was not before the district court. A. New Evidence Generally, an appellate court cannot consider evidence that was not contained" }, { "docid": "21592673", "title": "", "text": "injunction at issue here on September 13, 1988. On September 16, 1988 the district court denied the motion, “without prejudice to the right of plaintiff to seek a T.R.O. should something develop between now and the date scheduled for [the Bradley] trial.” Order, Record at No. 77 (Sept. 16,1988). On August 1, 1989, the district court granted summary judgment against Bradley. Thereafter, on September 6, 1989 Murray requested a hearing on her preliminary injunction motion. The district court denied the motion on September 11, 1989, in an order stating: [U]pon consideration of the record in this matter, and the various memoranda submitted by counsel, plaintiff Diane Murray’s Motion for a Preliminary Injunction is denied. The motion for Hearing on Request for Preliminary Injunction is dismissed as moot. App. at 292. II. In order to support a preliminary injunction, plaintiff must show both a likelihood of success on the merits and a probability of irreparable harm. See Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, — U.S. -, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989). Additionally, the district court should consider the effect of the issuance of a preliminary injunction on other interested persons and the public interest. See Arthur Treacher’s Fish & Chips, Inc. v. A & B Management Corp., 689 F.2d 1137, 1143 (3d Cir.1982). A district court’s denial of a preliminary injunction will be affirmed unless the court abused its discretion, committed an obvious error of law, or made a serious mistake in considering the proof. See Hohe, 868 F.2d at 70. In support of her motion for a preliminary injunction, Murray argued that the Learnball ban abridges her right to academic freedom, is punishment for protected First Amendment activities, is in retaliation for having filed this action, and is over-broad and vague. On appeal she contends that she is likely to succeed on the merits of her claims and that if the injunction is not granted, she will suffer irreparable harm. She also contends that it was an error not to hold a hearing before denying her motion for injunctive relief. The applicable Federal" }, { "docid": "23218090", "title": "", "text": "preliminary injunction hearing is not an abuse of discretion if the parties have a full opportunity to submit written testimony and to argue the matter. Kenneally v. Lungren, 967 F.2d 329, 336 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993); International Molders’ & Allied Workers’ Local Union v. Nelson, 799 F.2d 547, 555 (9th Cir.1986); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 546 & n. 6 (9th Cir.1969). Coach Stanley had an opportunity to present additional affidavits. In addition, the district court accepted her offers of proof as conclusive proof of the matter represented. Coach Stanley also asserts that the district court erred in resolving the preliminary injunction without providing her an opportunity to conduct discovery. We disagree. Coach Stanley requested a preliminary injunction on August 5, 1993. She did not file a request for a continuance in order to complete discovery prior to the August 26, 1993 hearing on the motion for a preliminary injunction. Thus, the opportunity to conduct discovery was not denied; Coach Stanley simply did not avail herself of it prior to the hearing. Nothing precluded her from conducting discovery prior to the hearing on the preliminary injunction. She could have moved, ex parte, for an order shortening time within which to conduct depositions. See Fed.R.Civ.P. 30(a); see also W. Scwarzer, A.W. Tashima, J. Wagstaffe, Federal Civil Procedure Before Trial § 11:157 (1993) (Federal Rules of Civil Procedure require a court order if plaintiff desires to take a deposition during the first 30 days after service of the summons and complaint, and “good cause [for such an order] may exist because of the urgent need for discovery in connection with an application for TRO or preliminary injunction”) (internal quotations omitted). IV. CONCLUSION The district court did not abuse its discretion in denying a mandatory preliminary injunction. Coach Stanley did not meet her burden of demonstrating the irreducible minimum for obtaining a preliminary injunction: “that there is a fair chance of success on the merits.” Martin v. International Olympic Comm., 740 F.2d at 675. Because mandatory preliminary injunctions are" }, { "docid": "3340098", "title": "", "text": "Of course, we still would lack jurisdiction to consider this appeal if it did not satisfy the “case or controversy” requirement of Article III. See Foster v. Carson, 347 F.3d 742, 745 (9th Cir.2003) (“Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists.” (internal quotation marks omitted)). Ray argues that the absence of a continuing controversy between herself and the government renders this appeal moot. We disagree. We regard the United States Attorney’s appeal as similar to appeals involving litigation sanctions or sealing orders, in which an ongoing conflict between a district court and one remaining party is sufficient to establish a “case or controversy.” See, e.g., Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109, 1112 (9th Cir.1990) (holding that, although sanctions to be paid to another party were mooted by the parties’ settlement, sanc tions to be paid to the court “are renewable on appeal regardless of whether the parties settle”); United States v. Vazquez, 145 F.3d 74, 83 (2d Cir.1998) (holding that a live controversy existed where the prevailing party remained subject to a sealing order). The continuing controversy between the United States Attorney and the district court, in which the United States Attorney alleges an injury capable of redress by this court, satisfies the “case or controversy” requirement of Article III. III. STANDARDS OF REVIEW We review de novo the district court’s resolution of legal issues, such as questions of statutory interpretation, United States v. Salemo, 81 F.3d 1453, 1457 (9th Cir.1996), and questions involving the court’s authority to act, United States v. Gatto, 763 F.2d 1040, 1044-45 (9th Cir.1985). We review for abuse of discretion the district court’s exercise of its authority. United States v. Doe, 125 F.3d 1249, 1253 (9th Cir.1997). IV. MERITS The United States contends that the Standing Order contravenes Congress’ intent, exceeds the district court’s authority, and violates the doctrines of separation of powers and sovereign immunity. In rejecting those arguments, we rely on three propositions: (1) that 28 U.S.C. §" } ]

[ { "docid": "22406306", "title": "", "text": "Alabama law, however, Ala. Code § 15-22-50 (1995), the court suspended that sentence and placed Shelton on two years’ unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal Appeals affirmed. That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had “made a knowing, intelligent, and voluntary waiver of his right.” App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is “evidence in the record that the [defendant] has actually been deprived of liberty.” Id., at 13. Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. Id., at 14. The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court’s decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be “sentenced to a term of imprisonment” absent provision of counsel. App.'37. In the Alabama high court’s view, a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, “ ‘the threat itself is hollow and should be considered a nullity.’ ” App. 37 (quoting United States v. Reilley, 948 F. 2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton’s conviction and the monetary portion of his punishment, but invalidated “that aspect of his sentence imposing 30 days of suspended jail time.” App. 40. By reversing Shelton’s suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6. Courts have divided on the Sixth Amendment question presented in this" } ]

[ { "docid": "15719512", "title": "", "text": "Guidelines.” United States v. Rohwedder, 243 F.3d 423, 426-27 (8th Cir.2001) (quoting United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir.1997)). Neither party cites any case from this circuit addressing the specific issue raised by Heath, and we are aware of none. The Government, however, relies on cases from three of our sister circuits, all of which conclude that assessing criminal history points for a prison sentence arising from the revocation of probation and imposition of a term of imprisonment based on the instant offense conduct is permissible. See United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009); United States v. Wheeler, 330 F.3d 407, 412-13 (6th Cir.2003); United States v. Franklin, 148 F.3d 451, 461-62 (5th Cir.1998); accord United States v. Madrigal-Rodriguez, 60 Fed.Appx. 5, 6 (9th Cir.2003) (unpublished). In Dozier, for example, the Tenth Circuit rejected a claim that § 4A1.2(a)(l) bars assigning criminal history points for a sentence imposed following the revocation of probation based on the offense conduct, holding that this argument “ignores the relation-back aspect of the law — incarceration resulting from a probation revocation is punishment for the original offense. It is imposed as a consequence of the defendant’s breach of probation terms but is not punishment for the breach.” Dozier, 555 F.3d at 1140; see also Wheeler, 330 F.3d at 412; Franklin, 148 F.3d at 462 n. 48. The analysis used by these circuits is supported by the Supreme Court’s holding, in other contexts, that “[a] suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense.” Alabama v. Shelton, 535 U.S. 654, 662, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002); see also Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Therefore, although Heath’s instant offense conduct played a part in the revocation of his probation, his post-revocation sentence was imposed as punishment solely for the 2006 assault conviction, which is not “a kind of harm that has already been fully accounted for”" }, { "docid": "15313102", "title": "", "text": "not restricted to considering information that would be admissible at trial.” United States v. Granados, 962 F.2d 767, 772 (8th Cir.1992). See also United States v. Ruminer, 786 F.2d 381, 387 (10th Cir.1986) (holding that the prohibition of Rule 11(e)(6)(D) is inapplicable to sentencing proceedings). The district court committed no error in using the statements at sentencing. B. Lloyd’s Criminal History Score Lloyd contends that the district court erred in assessing one out of a total of seven points to his criminal history score under the United States Sentencing Commission, Guidelines Manual §§ 4Al.l(e) and 4A1.2(c)(l) (1992), for a prior misdemeanor conviction for driving while his license was suspended. Specifically, Lloyd argues that the sentence imposed for that conviction was not a term of probation of at least one year within the meaning of U.S.S.G. § 4A1.2(c)(l). The district court determined that Lloyd’s criminal history score was 7, placing him in category IV, which together with his offense level of 38 subjected him to a Guidelines range of 324-405 months. If the disputed point were subtracted from Lloyd’s criminal history score, reducing it to 6, he would be placed in category III and subject to a sentence of 292-365 months. We review the district court’s factual findings at sentencing under the clearly erroneous standard, while the application of a Guidelines provision to the facts of the ease presents an issue of law that we review de novo. United States v. Frieberger, 28 F.3d 916, 918 (8th Cir.1994). Guidelines § 4A1.2(c)(l) provides that certain enumerated prior misdemeanor offenses (specifically including driving while a license is suspended) are to be calculated in a defendant’s criminal history score if the sentence imposed “was a term of probation of at least one year.” U.S.S.G. § 4A1.2(c)(l). The presentence investigation report (PSR), indicates that Lloyd was convicted in Illinois state court in 1992 of “Driving While License Suspended,” for which he received a sentence of “conditional discharge” with “18 months inactive supervision.” Because a term of “inactive supervision” was imposed for more than one year, we proceed to ascertain whether a sentence of “conditional discharge”" }, { "docid": "23494255", "title": "", "text": "States v. Smith, 39 F.3d 119, 122 (6th Cir.1994). Application note 4 to § 4Al.l(d) provides guidance as to what the Sentencing Commission intended to be classified as a “criminal justice sentence:” For purposes of [§ 4Al.l(d)] a “criminal justice sentence” means a sentence countable under § 4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this item to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. In United States v. Lloyd, 43 F.3d 1183 (8th Cir.1994), the Eighth Circuit was required to determine whether an Illinois sentence of conditional discharge should be included under § 4Al.l(d). The court noted that § 4Al.l(d) included both sentences of supervised and unsupervised probation. Id. at 1187. The eourt held that under Illinois law, conditional discharge was “the functional equivalent of ‘unsupervised probation’,” id. at 1188, and thus was included under § dAl.Rd). See also United States v. Caputo, 978 F.2d 972, 977 (7th Cir.1992) (“[s]ince unsupervised probation equals conditional discharge, we think the latter should be equated to probation”). Ky.Rev.Stat. § 533.020(3) (1995) states: When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the eourt may sentence him to conditional discharge if it is of the opinion that the defendant should conduct himself according to conditions determined by the court but that probationary supervision is inappropriate. Conditions of conditional discharge shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of conditional discharge. Ky.Rev.Stat. § 533.020(1) provides for a probationary sentence if a defendant “is in need of the supervision, guidance, assistance, or direction that the probation service can provide.” The conditional discharge sentence also includes the court-imposed conditions of § 533.030 and" }, { "docid": "23494256", "title": "", "text": "F.2d 972, 977 (7th Cir.1992) (“[s]ince unsupervised probation equals conditional discharge, we think the latter should be equated to probation”). Ky.Rev.Stat. § 533.020(3) (1995) states: When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the eourt may sentence him to conditional discharge if it is of the opinion that the defendant should conduct himself according to conditions determined by the court but that probationary supervision is inappropriate. Conditions of conditional discharge shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of conditional discharge. Ky.Rev.Stat. § 533.020(1) provides for a probationary sentence if a defendant “is in need of the supervision, guidance, assistance, or direction that the probation service can provide.” The conditional discharge sentence also includes the court-imposed conditions of § 533.030 and can be revoked. Defendant does remain under the court’s supervision since it can revoke the conditional discharge for violation of its terms. A conditional discharge is thus the same as a probationary sentence except that the defendant is not supervised. Kentucky courts also treat conditional discharge as the equivalent of probation. In Pedigo v. Commonwealth, 644 S.W.2d 355 (Ky.Ct.App.1982), the court rejected a defendant’s argument that the two were legally different for purposes of sentencing under a persistent felony offender law. The court stated that “[f]or all purposes, except supervision, or the lack thereof, there is no difference between conditional discharge and probation.” Id. at 358. See also Porter v. Commonwealth, 841 S.W.2d 166, 168 (Ky.1992) (“community service is considered to be a form of conditional discharge ... and is therefore comparable to probation”). We thus hold that conditional discharge is the “functional equivalent” of an unsupervised probation under U.S.S.G. § 4Al.l(d) and that the District Court did not err in basing defendant’s base offense level on this provision. IV. For the foregoing reasons, we" }, { "docid": "20365696", "title": "", "text": "apply.” The Commentary further explains that “a term of unsupervised probation would be included [in the definition of a criminal justice sentence]; but a sentence to pay a fine, by itself, would not be included.” At the time defendant committed the offense of conviction, she was subject to a one-year conditional discharge under N.Y. Penal Law § 65.05 (McKinney 1995), arising from her petit larceny conviction in the Herkimer Village Court. Under § 65.05, the Herkimer Village Court could revoke defendant’s conditional discharge sentence if she committed another offense prior to the termination of the period of conditional discharge. See N.Y. Penal Law § 65.05(2) (“The court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of conditional discharge.”). Although defendant’s sentence did not include active supervision, her sentence did include a supervisory component in that the Herkimer Village Court retained the power to revoke her conditional discharge sentence. We think that this supervisory component is sufficient to bring defendant’s conditional discharge sentence within the meaning of a “criminal justice sentence” under § 4Al.l(d). Moreover, the Commentary to § 4A1.1, which states that a term of unsupervised release is a criminal justice sentence under § 4Al.l(d), further supports the holding that defendant’s conditional discharge sentence is a criminal justice sentence because there is no discernible difference between a conditional discharge sentence and a sentence of unsupervised release. Indeed, every circuit that has compared a conditional discharge sentence to a sentence of unsupervised release has found them to be functionally equivalent. See, e.g., United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995) (holding that a “conditional discharge is the ‘functional equivalent’ of an unsupervised probation under U.S.S.G. § 4Al.l(d)”); United States v. Lloyd, 43 F.3d 1183, 1188 (8th Cir.1994) (holding “the nature of a sentence of ‘conditional discharge’ to be the functional equivalent of ‘unsupervised probation’ ”); United States v. Caputo, 978 F.2d 972, 977 (7th Cir.1992) (stating that “unsupervised probation equals conditional discharge”). Accordingly, the" }, { "docid": "23494254", "title": "", "text": "of enterprise but did reduce sentence for minor participation). III. The District Court increased defendant’s offense level by two points under U.S.S.G. § 4Al.l(d) for being under a criminal justice sentence at the time he was involved in the conspiracy. Defendant was convicted of possession of marijuana in violation of Kentucky law on December 16, 1991, whereby he was given a sentence of thirty days imprisonment conditionally discharged for two years. This sentence was in effect at the time of the instant offense. Defendant argues that a conditionally discharged sentence is a not criminal justice sentence within the meaning of § 4Al.l(d) which provides: Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release or escape status. Defendant also contends that a custodial or supervisory component is needed for a sentence to qualify as a “criminal justice sentence” and that conditional discharge is unsupervised. Issues involving the interpretation of the Sentencing Guidelines are legal questions which we review de novo. United States v. Smith, 39 F.3d 119, 122 (6th Cir.1994). Application note 4 to § 4Al.l(d) provides guidance as to what the Sentencing Commission intended to be classified as a “criminal justice sentence:” For purposes of [§ 4Al.l(d)] a “criminal justice sentence” means a sentence countable under § 4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this item to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. In United States v. Lloyd, 43 F.3d 1183 (8th Cir.1994), the Eighth Circuit was required to determine whether an Illinois sentence of conditional discharge should be included under § 4Al.l(d). The court noted that § 4Al.l(d) included both sentences of supervised and unsupervised probation. Id. at 1187. The eourt held that under Illinois law, conditional discharge was “the functional equivalent of ‘unsupervised probation’,” id. at 1188, and thus was included under § dAl.Rd). See also United States v. Caputo, 978" }, { "docid": "2168552", "title": "", "text": "criminal history computation only if we agreed with him that a one-year sentence of conditional discharge is not the functional equivalent of a one-year sentence of probation, which by the plain language of the guideline must be counted. As Zuniga-Lazaro recognizes, our opinion in Caputo holds squarely against him on this point. We reasoned that under Illinois law, conditional discharge “is probation without the probation officer and that is a distinction without a difference so far as the purposes of the guideline exception are concerned.” 978 F.2d at 977; see also United States v. Scott, 19 F.3d 1238, 1246 (7th Cir.1994). Therefore, a defendant sentenced to a year or more of conditional discharge is treated as if he were sentenced to a year or more of probation, and the sentence is counted under section 4A1.2(c)(1). Caputo, 978 F.2d at 976-77. Since we decided Caputo, we have not only reaffirmed its rationale, see United States v. Damico, 99 F.3d 1431, 1438 (7th Cir.1996), but extended it to sentences of court supervision, see Boyd, 146 F.3d at 502 (citing United States v. Binford, 108 F.3d 723, 727 (7th Cir.1997)). Other circuits have likewise concluded that sentences of conditional discharge and probation are equivalent for purposes of section 4A1.2(c)(l). See United States v. Rollins, 378 F.3d 535, 538 (6th Cir.2004) (collecting cases); see also United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.1996) (“every circuit that has compared a conditional discharge sentence to a sentence of unsupervised release has found them to be functionally equivalent”). Zuniga-Lazaro does not cite, and we cannot find, any case that rejects Caputo’s holding. Although, as he points out, the Eighth Circuit has held that a stayed sentence, under Minnesota law, is not the equivalent of probation for purposes of the guideline, United States v. Johnson, 43 F.3d 1211, 1215-16 (8th Cir.1995), the court simply distinguished Caputo (and Illinois’ treatment of conditional discharge) rather than expressing any doubt about Caputo’s reasoning; indeed, as Johnson itself noted, the Eighth Circuit has adopted Caputo’s holding as to sentences of conditional discharge, id. (citing United States v. Lloyd, 43 F.3d" }, { "docid": "19948885", "title": "", "text": "offense of conviction was committed.”); United States v. Harotunian, 920 F.2d 1040, 1043 (1st Cir.1990). III. Suspended Sentence Although we vacate both sentences, we nonetheless address Jaca’s “suspended sentence” argument for what guidance our comments may afford the district court on remand. Convictions such as Jaca’s may not result in suspended sentences. Jaca’s second sentence itself is not unclear; the sole question is whether it is a suspended sentence. We review questions of statutory interpretation de novo. United States v. Frechette, 456 F.3d 1, 7 (1st Cir.2006). “By common definition a ‘suspended sentence’ is a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates some court-imposed condition during a probationary period.” United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.2002); see also Black’s Law Dictionary 1394 (8th ed.2004) (defining “suspended sentence” as “[a] sentence postponed so that the defendant is not required to serve time unless he or she commits another crime or violates some other court-imposed condition”). Here, the district court allowed Jaca credit against the second sentence for time he had served before the second sentencing. The second sentence was retroactively deemed to have begun at the time the first sentence began, to have been served partially concurrently therewith until the date of the second sentencing; the remainder of the second sentence was to be served consecutively to the first sentence. At no time would Jaca be out of custody: The balance of the second sentence would commence automatically when the first sentence ended. This type of sentence, even if unusual, does not constitute a suspended sentence. IV. Sentencing Entrapment Jaca next contends that the district court erred in rejecting the sentencing entrapment argument. Because we find that Jaca was not improperly induced to commit more, or more serious, crimes than those to which he was already predisposed, we agree with the district court that no improper manipulation occurred. The following additional facts provide the basis of Jaca’s sentencing entrapment argument. Investigators working with Vanessa arranged for the first shipment of sham cocaine" }, { "docid": "23193775", "title": "", "text": "used different phrases and gave them different meanings. The fact that the Sentencing Commission created a separate definition for the phrase “sentence of imprisonment” supports this presumption. Courts typically use the phrase “term of imprisonment” and “sentence of imprisonment” interchangeably to refer to the period of confinement ordered by the court. See, e.g., United States v. Augustin, 376 F.3d 135, 137 (3d Cir.2004) (“A sentence of imprisonment of 135 months was imposed on the convictions for carjacking and possession of a firearm by a drug user, to be followed by a mandatory 240 month term of imprisonment for use of a firearm during a crime of violence.”); United States v. Perez-Macias, 335 F.3d 421, 427-28 (5th Cir.2003) (“The key to the Supreme Court’s jurisprudence addressing the right to counsel in misdemeanor cases is whether the defendant receives a sentence of imprisonment. ... A defendant who receives a suspended sentence is given a term of imprisonment, while a defendant who receives a stand-alone sentence of probation is not.”); Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th Cir.2002) (“The statute that governs the manner in which multiple sentences of imprisonment may be imposed is 18 U.S.C. § 3584, which states in subsection (a): ... [‘]If multiple terms of imprisonment are imposed on a defendant at the same time.... [’]”). In order to instruct courts to deviate from the common usage of “sentence of imprisonment,” the Guidelines give this phrase a distinct meaning under the “Definitions and Instructions for Computing Criminal History.” U.S.S.G. § 4A1.2. As used in computing criminal history, “ ‘sentence of imprisonment’ means a sentence of incarceration and ... refers only to the portion that was not suspended.” U.S.S.G. § 4A1.2(b)(1)-(2). In other words, a “sentence of imprisonment” for criminal-history purposes, is not the length of imprisonment imposed, but the length of the imprisonment imposed less any suspended portion. There is nothing in the Guidelines that permits the usurpation of this definition for use in § 4A1.2(c)(1). If the Sentencing Commission had wanted to use the phrase “sentence of imprisonment” with its associated, non-obvious definition in § 4A1.2(c)(1), it could" }, { "docid": "19948884", "title": "", "text": "first sentence. The contrary finding of the first sentencing court was, thus, clearly erroneous. We must therefore vacate both sentences and remand for resentencing. II. Concurrent or Partially Concurrent Sentencing Jaca argues that the district court erred in applying U.S.S.G. § 5G1.3(c), which allows discretion in choosing a concurrent, partially concurrent, or consecutive sentence. He claims that instead U.S.S.G. § 5G1.3(b) mandates a fully concurrent sentence. Because we remand for resentencing, we consider the argument only long enough to note that this Guideline changed after Jaca committed these crimes but before he was sentenced for them. See United States v. Lino, 493 F.3d 41, 45 (1st Cir.2007). We expect that the Ex Post Facto Clause requires application of the older Guidelines if those would be more lenient. See U.S.S.G. § lBl.ll(b)(l) (“If the ... use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.”); United States v. Harotunian, 920 F.2d 1040, 1043 (1st Cir.1990). III. Suspended Sentence Although we vacate both sentences, we nonetheless address Jaca’s “suspended sentence” argument for what guidance our comments may afford the district court on remand. Convictions such as Jaca’s may not result in suspended sentences. Jaca’s second sentence itself is not unclear; the sole question is whether it is a suspended sentence. We review questions of statutory interpretation de novo. United States v. Frechette, 456 F.3d 1, 7 (1st Cir.2006). “By common definition a ‘suspended sentence’ is a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates some court-imposed condition during a probationary period.” United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.2002); see also Black’s Law Dictionary 1394 (8th ed.2004) (defining “suspended sentence” as “[a] sentence postponed so that the defendant is not required to serve time unless he or she commits another crime or violates some other court-imposed condition”). Here, the" }, { "docid": "22139571", "title": "", "text": "more than 3 years in prison if the offense for which the person was convicted was a Class B felony_”). Under these circumstances, we cannot conclude that Mathena’s sentence was plainly unreasonable. Ill For the foregoing reasons, we AFFIRM the sentence imposed by the district court. . Those standard conditions required, inter alia, that Mathena not commit another federal, state, or local crime, and that he not leave the judicial district without the permission of the court or his probation officer. . A court may require a person who has violated a condition of his supervised release “to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision.\" 18 U.S.C. § 3583(e)(3). . See United States Sentencing Commission, Guidelines Manual, Chapter 7 (Nov. 1992) (entitled \"Violations of Probation and Supervised Release”). .According to U.S.S.G. § 7B 1.4(a), p.s., the range of imprisonment applicable upon revocation is determined by plotting a defendant's grade of violation against his criminal history category at the time of his original sentence to a term of supervision. Mathena's DWI conduct equated to a Grade B violation, see U.S.S.G. § 7B 1.1 (a)(2), p.s., and his applicable criminal history category was a II. Those factors yielded a sentencing range of 6-12 months imprisonment based on the table set forth in U.S.S.G. § 7B1.4, p.s. . Mathena’s counsel below properly preserved this issue. At the revocation hearing, counsel stated: . The overwhelming majority of the circuits have similarly held that the policy statements of Chapter 7 are advisory. See United States v. Anderson, 15 F.3d 278, 284 (2d Cir.1994); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-901 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Cohen, 965 F.2d 58, 61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 774 (10th Cir.1992); United States v. Corpuz, 953 F.2d 526, 530 (9th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, —U.S.-, 112 S.Ct. 611, 116 L.Ed.2d 634" }, { "docid": "23494257", "title": "", "text": "can be revoked. Defendant does remain under the court’s supervision since it can revoke the conditional discharge for violation of its terms. A conditional discharge is thus the same as a probationary sentence except that the defendant is not supervised. Kentucky courts also treat conditional discharge as the equivalent of probation. In Pedigo v. Commonwealth, 644 S.W.2d 355 (Ky.Ct.App.1982), the court rejected a defendant’s argument that the two were legally different for purposes of sentencing under a persistent felony offender law. The court stated that “[f]or all purposes, except supervision, or the lack thereof, there is no difference between conditional discharge and probation.” Id. at 358. See also Porter v. Commonwealth, 841 S.W.2d 166, 168 (Ky.1992) (“community service is considered to be a form of conditional discharge ... and is therefore comparable to probation”). We thus hold that conditional discharge is the “functional equivalent” of an unsupervised probation under U.S.S.G. § 4Al.l(d) and that the District Court did not err in basing defendant’s base offense level on this provision. IV. For the foregoing reasons, we AFFIRM defendant’s sentence. . Under Illinois law, conditional discharge was defined asa\" 'conditional and revocable release without probationary supervision but under such conditions as may be imposed by the court.' Ill.Rev.Stat. ch. 38, para 1005-1-4 (1989).” Lloyd, 43 F.3d at 1187 n. 4." }, { "docid": "15313103", "title": "", "text": "subtracted from Lloyd’s criminal history score, reducing it to 6, he would be placed in category III and subject to a sentence of 292-365 months. We review the district court’s factual findings at sentencing under the clearly erroneous standard, while the application of a Guidelines provision to the facts of the ease presents an issue of law that we review de novo. United States v. Frieberger, 28 F.3d 916, 918 (8th Cir.1994). Guidelines § 4A1.2(c)(l) provides that certain enumerated prior misdemeanor offenses (specifically including driving while a license is suspended) are to be calculated in a defendant’s criminal history score if the sentence imposed “was a term of probation of at least one year.” U.S.S.G. § 4A1.2(c)(l). The presentence investigation report (PSR), indicates that Lloyd was convicted in Illinois state court in 1992 of “Driving While License Suspended,” for which he received a sentence of “conditional discharge” with “18 months inactive supervision.” Because a term of “inactive supervision” was imposed for more than one year, we proceed to ascertain whether a sentence of “conditional discharge” under Illinois law falls within the meaning of “probation” contained in U.S.S.G. § 4A1.2(c)(l). We have not previously defined the contours of “probation” as it is found in § 4A1.2(c)(l), but we recognize that determining the scope of the term will require careful scrutiny of the state law at issue. The Seventh Circuit has taken occasion to interpret the scope of § 4A1.2(c)(l) in the specific context of a “conditional discharge” under Illinois law. See United States v. Caputo, 978 F.2d 972 (7th Cir.1992). In Caputo, the defendant had been sentenced in Illinois state court to “a one-year sentence of ‘conditional discharge’ for resisting a peace officer.” 978 F.2d at 976. The court observed that the only distinction between sentences of formal probation and “conditional discharge” under Illinois law is that in the former the defendant is monitored by a probation officer, while in the latter no such supervision is provided. Id. at 976-77. The court stated that “conditional discharge” is “probation without the probation officer and that is a distinction without a difference so" }, { "docid": "7531963", "title": "", "text": "execution of a portion of the sentence. Although some courts of appeals have held that suspension of a portion of a sentence can be implied in a split sentence not stating specifically that the court has suspended a portion of the sentence, we have held that a split sentence that imposes probation without suspending a portion of the sentence is illegal. See United States v. Guevremont, 829 F.2d 423, 427 (3d Cir.1987); United States v. Stupak, 362 F.2d 933, 934 (3d Cir.1966) (“The court may not require a defendant to submit to probationary supervision unless the execution of part of his prison term is suspended.... Absent such a suspension the authority of the court over the defendant during the period of probation is lacking.... The probation order was therefore invalid.”). Our holdings, though rendered on appeal from prosecutions in United States district courts under federal law prior to the enactment of the Sentencing Reform Act of 1984 rather than on appeal from prosecutions in the District Court of the Virgin Islands under Virgin Islands law, are consistent with V.I.Code Ann. tit. 5, § 3711 which provides: Upon entering a judgment of conviction of any offense against the laws of the Virgin Islands not punishable by life imprisonment, the district court or a territorial court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. Section 3711 further provides that when the maximum punishment exceeds six months for a particular offense, the court may impose a sentence in excess of six months but provide that the defendant remain in confinement for a period not exceeding six months with the execution of the remainder of the sentence suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best. Nevertheless, even in the absence of a written judgment reflecting that the court" }, { "docid": "5553598", "title": "", "text": "to jail or prison.”); Webster’s Third New International Dictionary 1806 (1981) (defining probation as “the action of suspending the sentence of a convicted offender in such a way that the offender is given freedom after promising good behavior and agreeing to a varying degree of supervision, to the usually imposed condition of making a report to a particular officer or court at stated intervals, and to any other additionally specified conditions”) (emphasis added). The use of “probation” in other parts of §§ 4A1.1 and 4A1.2 further confirms our view that the Sentencing Commission used the term in a broad sense, to encompass any sentence that is conditioned on the defendant’s compliance with a prescribed set of requirements, where the offense of conviction provides for the possibility of imprisonment. Section 4Al.l(d) instructs that the sentencing court should add two criminal-history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” The Application Note explains that [f|or the purposes of this item, a “criminal justice sentence” means a sentence countable under § 4A1.2 ... having a custodial or supervisory component, although active supervision is not required for this item to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. U.S.S.G. § 4A1.1, cmt. n.4. In light of this commentary, we have held that § 4Al.l(d) includes a sentence of conditional discharge under N.Y. Penal Law § 65.05, because while § 65.05 does not require “active supervision,” it has a “supervisory component” insofar as the sentencing court can revoke or modify the sentence if the defendant violates a condition. See United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.1996) (“[Tjhere is no discernible difference between a conditional discharge sentence [under § 65.05] and a sentence of unsupervised release.”); see also United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995); United States v. Lloyd, 43 F.3d 1183, 1188 (8th Cir.1994). While § 4Al.l(d) is not at issue in Ramirez’s case and our" }, { "docid": "2168553", "title": "", "text": "502 (citing United States v. Binford, 108 F.3d 723, 727 (7th Cir.1997)). Other circuits have likewise concluded that sentences of conditional discharge and probation are equivalent for purposes of section 4A1.2(c)(l). See United States v. Rollins, 378 F.3d 535, 538 (6th Cir.2004) (collecting cases); see also United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.1996) (“every circuit that has compared a conditional discharge sentence to a sentence of unsupervised release has found them to be functionally equivalent”). Zuniga-Lazaro does not cite, and we cannot find, any case that rejects Caputo’s holding. Although, as he points out, the Eighth Circuit has held that a stayed sentence, under Minnesota law, is not the equivalent of probation for purposes of the guideline, United States v. Johnson, 43 F.3d 1211, 1215-16 (8th Cir.1995), the court simply distinguished Caputo (and Illinois’ treatment of conditional discharge) rather than expressing any doubt about Caputo’s reasoning; indeed, as Johnson itself noted, the Eighth Circuit has adopted Caputo’s holding as to sentences of conditional discharge, id. (citing United States v. Lloyd, 43 F.3d 1183, 1187-88 (8th Cir.1994)). “We do not take lightly suggestions to overrule circuit precedent,” Chicago Truck Drivers, Helpers & Warehouse Union (Indep.) Pension Fund v. Steinberg, 32 F.3d 269, 272 (7th Cir.1994), and we discern no basis for doing so here, particularly given the constraints of plain error review. As for the sentence imposed on Zuniga-Lazaro’s 2002 conviction for leaving the scene of an accident, we note that the sentence included not just a suspended 30-day jail term but also a one-year term of probation. R. 34 at 11 ¶ 41. The plain language of section 4A1.2(c)(l)(A) dictates that a one-year sentence of probation for offenses including leaving the scene of an accident shall be included in the defendant’s criminal history score. Consequently, irrespective of how the suspended 30-day jail term would be treated standing alone, the probation portion of the sentence suffices to bring Zuniga-Lazaro’s sentence within the guideline. See, e.g., United States v. Tomasi, 313 F.3d 653, 657 (2d Cir.2002) (sentence including suspended jail term of zero to 30 days plus probation term" }, { "docid": "22738637", "title": "", "text": "v. United States, 128 S.Ct. at 595. In so holding, the Court noted that percentages can be particularly deceiving where, as in this case, the sentencing range at issue is measured in months. See id. (noting that deviations always appear extreme when Guidelines ranges are small). Gall’s holding validates our own earlier conclusion that numerical rules are “too simplistic” to effectuate the sentencing purposes of § 3553(a). United States v. Rattoballi, 452 F.3d at 137 n. 5; see United States v. Fernandez, 443 F.3d at 27 (“[W]e have expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness.”)- Nor can Verkhoglyad demonstrate substantive unreasonableness by noting that his 57-month sentence far exceeds the two-year sentence upheld in United States v. Fleming for a defendant who also repeatedly violated supervision and abused drugs. See 397 F.3d at 96-97. The cases are not analogous. Fleming violated supervised release, not probation. This means he had served a term of incarceration on his underlying crime of conviction. Thus, the relevant statute, 18 U.S.C. § 3583(e)(3), did not provide for the district court to resentence Fleming on his underlying crime of conviction. Moreover, it expressly limited the prison sentence that could be imposed for his Class D supervision violation to two years. See id. By contrast, Verkhoglyad’s probationary sentence allowed him to avoid serving any prison time on his felon-in-possession conviction, provided he adhered to certain conditions. When he breached one of those conditions by unlawfully possessing controlled substances, 18 U.S.C. § 3565(b)(1) required the district court to revoke the conditional sentence of probation and to resentence Verkhoglyad to prison on the underlying crime of conviction, authorizing any term up to that crime’s ten-year maximum. The district court did not impose a ten-year sentence. Rather, it sentenced Verk-hoglyad to 57 months’ imprisonment, the high end of the Guidelines range applicable to his felon-in-possession conviction. As we noted earlier, see supra 130 n. 5, “a district court is not restricted to the Guidelines sentencing range applicable to a defendant’s underlying federal offense when sentencing a defendant for" }, { "docid": "22584533", "title": "", "text": "counsel under Argersinger and its progeny. See id. at 1767. The Court explained that “[a] suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense.” Id. at 1770. Shelton did not address the sentence of probation at issue in this case because a suspended sentence is not the same as a stand-alone sentence of probation. The sentence under consideration in Shelton was a suspended sentence coupled with probation, while in this case, Perez-Macias received probation without a suspended sentence. Many, if not all, states impose probation only in connection with a suspended sentence. See Shelton, 122 S.Ct. at 1776 (noting “the Alabama Attorney General’s acknowledgment at oral argument that he did not know of any State that imposes, postconviction ... a term of probation unattached to a suspended sentence”). In contrast, in the federal system, probation is available as a stand-alone sentence and suspended sentences are not used. See U.S. Sentencing Guidelines Manual ch. 7, introductory cmt. (2001) (“The statutory authority to ‘suspend’ the imposition or execution of a sentence in order to impose a term of probation was abolished upon implementation of the sentencing guidelines. Instead, the Sentencing Reform Act recognized probation as a sentence in itself.”); see also 18 U.S.C. § 3561 (authorizing a sentence of probation). None of our sister circuits has yet addressed how Shelton applies to federal stand-alone probation sentences. A suspended sentence is conceptually different from a sentence of probation. If a defendant receives a suspended sentence, he is sentenced to a term of imprisonment that is suspended. See Shelton, 122 S.Ct. at 1770. Suspended sentences are usually imposed in conjunction with probation so that if a defendant commits another crime or violates a condition of probation, his suspended sentence is activated. See id. If a defendant receives only a sentence of probation, he is sentenced to community release with condi tions; he does not receive a sentence of imprisonment. See, e.g., Wayne R. La-Fave et al., Criminal Procedure 1199-1200 (3d ed.2000);" }, { "docid": "8020925", "title": "", "text": "justice and the best interest of the public as well as the defendant will be served thereby” the sentencing judge “may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” The section also provides for a “split sentence” such as that imposed on McCrae. The judge may order a defendant to serve a portion of incarceration imposed, suspend the balance, and impose probation “for such period ... as the court deems best.” Id. Section 3651 further provides that the court may revoke or modify any condition of probation, or may change the period of probation. The period of probation, together with any extension thereof, may not exceed five years. Id. By its express terms, section 3651 permits extension of an original period of probation provided it does not exceed five years. Also, 18 U.S.C. § 3653 provides: When directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable. 18 U.S.C. § 3653 (1976) (emphasis added). This paragraph permits extension of probation without formal revocation or even without a probation violation. Skipworth v. United States, 508 F.2d 598, 602 (3d Cir.1975). See also United States v. Chancey, 695 F.2d 1275, 1277 (11th Cir.1982). The provision does not expressly permit extension of probation on formal revocation, but neither is such extension prohibited. Nevertheless, McCrae argues that a different paragraph in section 3653 prohibits extension of the original probationary term when sentence has been imposed but suspended. McCrae relies on the following language: As speedily as possible after arrest [for probation violation] the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose" }, { "docid": "23543003", "title": "", "text": "U.S.S.G. § 2L1.2(b)(l)(A) cmts. l(B)(iv) & 5. Consequently, the district court did not err in finding that Gomez’s conviction under California Health & Safety Code section 11379(a) was a “drug trafficking offense.” B. The more difficult question presented by using the section 11379(a) conviction to support the enhancement is whether a sentence of greater than thirteen months was imposed. We conclude that it was not. For purposes of U.S.S.G. § 2L1.2(b), a “sentence imposed” does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003) (interpreting U.S.S.G. § 2L1.2 cmt. l(A)(iv) (2001), having materially the same text as current § 4A1.2(b)(2), which is incorporated by reference into current § 2L1.2, see § 2L1.2 cmt. l(B)(vii)). It does include both a sentence originally imposed, but not suspended, and any additional sentence of incarceration ordered as a result of a probation violation. Id. It also includes a term of incarceration imposed as a condition of probation. United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248-49 (9th Cir.2003) (also interpreting prior version of the Guidelines). Moreover, we ignore any good behavior credits or other non-judicial adjustments earned by the defendant. United States v. Benitez-Perez, 367 F.3d 1200, 1204 (9th Cir .2004). According to court documents, Gomez’s sentence was suspended and he was given three years of probation, which included as a term of probation a 127-day sentence in the custody of the county sheriff. At the time the conditions of probation were imposed, Gomez had already earned 127 days of credit for time served and good behavior awaiting trial. He was therefore released on May 4, 1999. Sometime thereafter, Gomez violated a condition of his probation. On March 30, 2000, he appeared in the California trial court; the trial court revoked Gomez’s probation and then reinstated it with an added condition, a 365-day term in the custody of the county sheriff. Gomez argues that the district court erred by adding the 365-day jail term to the 127-day jail term because the longer sentence included the shorter one. The state trial court records" } ]

[ { "docid": "15563985", "title": "", "text": "rested her opening case, the district court granted Brown’s motion for a directed verdict only as to- the assault and battery claim and the quid pro quo sex discrimination claim. Fed.R.Civ.P. 50(a). Following further evidence, the negligent supervision and hostile environment claims were submitted to the jury. On March 31, 1998, the jury returned a verdict in Brown’s favor on both claims. Thereafter Wills filed a post-trial motion seeking judgment notwithstanding the verdict and, alternatively, a new trial on these same claims. Fed.R.Civ.P. 50, 59. The district court denied Wills’s motion and entered judgment in favor of Brown. Wills now appeals, challenging (in her main argument) the district court’s exclusion of evidence on her hostile work environment claim'which was rejected by the jury. She also attacks the district court’s grant of summary judgment on three of the state tort claims, its grant of directed verdicts on her assault and battery and her quid pro quo claims, and its denial of a new trial on the two claims rejected by the jury. 1. Title IX forbids schools that receive federal ' funding from discriminating against students “on the basis of sex.” 20 U.S.C. § 1681(a). Starting from the now-accepted premise that sexual harassment can constitute sex discrimination, Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court has endorsed two different, although related, theories as to how such harassment can ■ constitute sex discrimination either in the workplace (Title VII) or school context (Title IX). One theory, popularly known as “quid pro quo” harassment or discrimination, occurs most often when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority, Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); the other theory, under the rubric “hostile environment,” applies where the acts of sexual harassment are sufficiently severe to interfere with the workplace or school opportunities normally available to the worker or student. Meri tor, 477 U.S. at 66, 106 S.Ct." } ]

[ { "docid": "22915315", "title": "", "text": "Having disposed of Karibian’s federal claim, the court went on to dismiss Karibian’s pendent state law claims for lack of jurisdiction. Karibian now appeals. DISCUSSION By its terms, Title VII prohibits discrimination on the basis of sex with respect to the “compensation, terms, conditions, or privileges” of employment. 42 U.S.C. § 2000e-2(a)(l) (1988). Although neither the statute nor its legislative history fleshes out the meaning of this sweeping prohibition, it is now established law that sexual harassment in the workplace violates “Title VII’s broad rule of workplace equality.” Harris v. Forklift Sys., Inc., — U.S. -,-, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). While the law of sexual harassment continues to develop at a brisk pace, a plaintiff seeking relief for sexual harassment may presently proceed under two theories: (1) quid pro quo, and (2) hostile work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986); Kotcher, 957 F.2d at 62. Karibian believes that Urban’s harassment fits both paradigms; and we address each in turn. I. Karibian’s Quid Pro Quo Claim Under the Guidelines established by the Equal Employment Opportunity Commission (“EEOC”), quid pro quo harassment occurs when “submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.” 29 C.F.R. § 1604.11(a)(2) (1993). See also Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir.1989). Accordingly, to establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F.2d 644, 648 (6th Cir.1986); Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982). Because the quid pro quo harasser, by definition, wields the employer’s authority to alter the terms and conditions of employment — either" }, { "docid": "217668", "title": "", "text": "was bothered by Kraisel-burd’s invitation to his hotel room, disgusted by him grabbing her breasts, and she was depressed, seeing a psychiatrist, and taking anti-depressants. The fact that the complained of conduct involved non-consensual physical touching, an invitation for sexual relations, and embarrassing public comments strikes us as being sufficiently in the realm of what a reasonable person might find offensive. Gerald presented enough evidence on this point to withstand summary judgment. Establishing some basis for employer liability is Gerald’s final hurdle. When it is a supervisor that creates an actionable hostile work environment, the employer is vicariously liable. Arrieta-Colón v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 86 (1st Cir.2006) (citing Faragher, 524 U.S. at 807, 118 S.Ct. 2275); Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 (1st Cir.2007). Here it is undisputed that Kraiselburd was Gerald’s supervisor with authority over her. Thus a basis for the University’s liability has been established. This takes us to our ultimate conclusion. When reviewing a summary judgment grant like this one, our “function is one of screening, that is, to determine whether, on particular facts, a reasonable jury could reach such a conclusion.” Noviello, 398 F.3d at 94. In other words, we patrol the outer bounds. Vera v. McHugh, 622 F.3d 17, 27 (1st Cir.2010). Here, taking the evidence in a light most favorable to Gerald, we cannot decisively say (as the district judge did) that a reasonable jury could not conclude that she was subject to a hostile work environment. The court erred in granting summary judgment on Gerald’s hostile work environment claim. ii. Quid Pro Quo Quid pro quo sexual harassment is when a supervisor uses his superior position to extract sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts the subordinate’s employment. Valentín-Almeyda, 447 F.3d at 93. This type of harassment “can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.” Hernández-Loring v. Universidad Metropolitana, 233 F.3d 49, 52 (1st Cir.2000). Gerald claims that is precisely what happened here. Because she rejected" }, { "docid": "217692", "title": "", "text": "therefore cannot definitively say whether Gerald’s state law claims are time barred. We decline Kraiselburd’s offer to affirm summary judgment on timeliness grounds; the record is simply insufficient on this point. Instead we turn to the merits of the state law claims and these we can make quick work of. Law 17 and 69 serve virtually the same purposes and outlaw essentially identical behavior, and Law 69’s specific prohibition on gender discrimination overlaps with Law 17’s bar on sexual harassment. Garcia v. Sprint PCS Caribe, 841 F.Supp.2d 538, 564 (D.P.R.2012). Furthermore, for our purposes, the substantive law of Puer-to Rico on sexual harassment appears to be aligned with Title VII law; the latter’s precedents being used freely to construe the former. Hernández-Loring, 233 F.3d at 52 (finding that Puerto Rico and Title VII law match up for purposes of a hostile work environment and quid pro quo claim). Therefore we need not say much on this point. For the same reasons summary judgment should not have been granted on Gerald’s Title VII sexual harassment claim, it should not have been granted on her Law 17 and 69 claims. The district court erred. CONCLUSION For the reasons stated, we affirm the district court’s grant of summary judgment on the retaliation and constructive discharge claim. The grant of summary judgment on the Title VII sexual harassment claim (both hostile work environment and quid pro quo) and the Law 17 and 69 state law claims is vacated and those claims are remanded for further proceedings. Costs are awarded to the appellant. So ordered. . Rivera claimed Gerald approached her pri- or to her interview and told Rivera to tell López that she had heard the word \"fuck” and that it was offensive. Rivera told Gerald that was not what she heard and she would tell the truth. Gerald insisted that Rivera call her after the interview. Gerald was deemed by López to have attempted to influence Rivera’s testimony. . The report referred not only to the animosity between Kraiselburd and Gerald but between Gerald and Ayala. It seems Ayala and Gerald had got" }, { "docid": "3212596", "title": "", "text": "also violates Title VII. In this form of harassment, “an employee or supervisor uses his or her superior position to extract sexual favors from a subordinate employee, and if denied those favors, retaliates by taking action adversely affecting the subordinate’s employment.” Id. at 728; see also Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 52 (1st Cir.2000) (“Under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.”). Retaliation, yet another basis for liability under Title VII, is discrimination against an employee because the employee has, inter alia, “opposed” an unlawful employment practice under Title VII or “made a charge ... or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). A retaliation claim requires a showing that (1) the plaintiff engaged in protected conduct; (2) she was subjected to an adverse employment action; and (3) there was a causal connection between the first and second elements. Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005). Protected conduct includes not only the filing of administrative complaints, id., but also complaining to one’s supervisors. Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir.2003). An employment action, to be adverse, “must materially change the conditions” of the plaintiffs employment; examples include “disadvantageous transfers or assignments” and “unwarranted negative job evaluations.” Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir.2002) (quoting Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998)). “Once the plaintiff has made a prima facie showing of retaliation,” the “defendant must articulate a legitimate, non-retaliatory reason for its employment decision. If the defendant meets this burden, the plaintiff must now show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant’s retaliatory animus.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 26 (1st Cir.2004). The defendant’s burden is one of production only; the burden of persuasion remains on the plaintiff. Provencher v. CVS Pharmacy, 145 F.3d" }, { "docid": "14091040", "title": "", "text": "the “true reason” for which he was fired. Additionally, had Plaintiff reported to Customed on Wednesday, a day he was supposed to be at Defendant’s office in Carolina, he could have been reprimanded for failing to show up to work. When an employer gives an inconsistent explanation to an adverse employment action, “a jury may infer that the articulated reason [is] pretextual.” Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir.2000) (citing Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir.1992)(“[a] jury’s conclusion that an employer’s reasons were pretextual can be supported by inconsistencies in or the unconvincing nature of the decision maker’s testimony”)). Consequently, we find that there is a genuine dispute of material facts that prevent us from entering summary judgment for Defendant. Therefore, Defendant’s motion for summary judgment on this claim is DENIED. 4)Pendent Jurisdiction Plaintiff also alleges the violation of Puerto Rico statutory counterparts to Title VII. Due to the fact that substantive law of Puerto Rico on sexual harassment, so far as pertinent here, is aligned with Title VII law as evidenced by the fact that Title VII precedents are used freely in construing Commonwealth law, pursuant to the above discussion, we likewise find for Defendant on Plaintiffs Commonwealth law sex discrimination claims. Hernandez-Loring v. Univ. Metropolitana, 233 F.3d 49 (1st Cir.2000). See Rodriguez Meléndez v. Supermercado Amigo, Inc., 126 D.P.R. 117 (1990). Therefore, Plaintiffs Commonwealth law claims will be DISMISSED WITH PREJUDICE. SO ORDERED. . It is well-settled that any document filed with this Court in a language other than English shall be accompanied by certified trans-lalion. D.P.R. Local Rule. 5.1(d); see also González-Morales v. Hernández Arencibia, 221 F.3d 45, 50 n. 4 (1st Cir.2000) (finding that appellants had waived arguments premised on documents for which they had not provided translations). It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English. Even if this practice were not intuitively obvious in Puerto Rico, Congress enacted section 42 of the Jones Act, which requires that \"[a]ll pleadings and proceedings in the United States District" }, { "docid": "217669", "title": "", "text": "screening, that is, to determine whether, on particular facts, a reasonable jury could reach such a conclusion.” Noviello, 398 F.3d at 94. In other words, we patrol the outer bounds. Vera v. McHugh, 622 F.3d 17, 27 (1st Cir.2010). Here, taking the evidence in a light most favorable to Gerald, we cannot decisively say (as the district judge did) that a reasonable jury could not conclude that she was subject to a hostile work environment. The court erred in granting summary judgment on Gerald’s hostile work environment claim. ii. Quid Pro Quo Quid pro quo sexual harassment is when a supervisor uses his superior position to extract sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts the subordinate’s employment. Valentín-Almeyda, 447 F.3d at 93. This type of harassment “can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.” Hernández-Loring v. Universidad Metropolitana, 233 F.3d 49, 52 (1st Cir.2000). Gerald claims that is precisely what happened here. Because she rejected Kraisel-burd’s sexual advances, she says he used his position to get her demoted from Scientist in Charge. The University counters that there is no evidence that Kraiselburd conditioned Gerald’s continued employment on her accepting his advances and that Gerald’s change in title stemmed from her non-compliance with her job responsibilities and insubordinate attitude. Gerald’s response: the University is exaggerating, if not misrepresenting, the scope of her responsibilities and supposed non-compliance, and it is no coincidence that Krai-selburd started complaining about her performance right around the time she spurned him. She calls his complaint suspiciously inconsistent with earlier high praise of her. The district court, after reviewing the evidence, accepted the Uni- verity’s version of things. We are less convinced. Sometimes in these quid pro quo cases the defendant superior does not mince words and the plaintiff employee is able to present direct evidence that the defendant threatened to exact retribution. See, e.g., Valentín-Almeyda, 447 F.3d at 96 (defendant police supervisor told the plaintiff officer she would be “screwed” if she did not react more affectionately" }, { "docid": "9359756", "title": "", "text": "also prohibits employer retaliation against those employees who oppose discriminatory employment practices. 42 U.S.C. § 2000e-3(a). The Equal Employment Opportunity Commission (“EEOC”) has promulgated guidelines making clear that sexual harassment constitutes sex-based employment discrimination in violation of Title VII: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such an individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 29 C.F.R. § 1604.11(a). We have recognized multiple ways in which sexual harassment can affect a term, condition, or privilege of employment, as required by Title VII. See generally Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir.2006) (delineating the legal standard for Title VII claims). Quid pro quo harassment, in which “a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands,” Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 52 (1st Cir.2000), is actionable because it involves explicit and tangible alterations in the terms or conditions of employment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-52, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Harassment that creates a sexually hostile and abusive work environment is actionable when it is sufficiently severe and pervasive to effect constructive alterations in the terms or conditions of employment. See id. at 752-54, 118 S.Ct. 2257. The Supreme Court has cautioned, however, that the “rough demarcation” between quid pro quo claims and hostile work environment claims may be of “limited utility,” other than to generally describe alternative approaches to proving sex-based employment discrimination. See id. at 751, 118 S.Ct. 2257. Before the district court, Pérez-Cordero argued that Santiago’s conduct constituted quid pro quo harassment and created a hostile work environment for which WalMart was liable, and he further" }, { "docid": "3212595", "title": "", "text": "unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiffs employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established. Id. Application of the hostile work environment test requires an assessment of the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367. Although offhand remarks and isolated incidents are not enough, “[ejvidence of sexual remarks, in-nuendoes, ridicule, and intimidation may be sufficient to support a jury verdict for a hostile work environment.” O’Rourke, 235 F.3d at 729. Quid pro quo sexual harassment also violates Title VII. In this form of harassment, “an employee or supervisor uses his or her superior position to extract sexual favors from a subordinate employee, and if denied those favors, retaliates by taking action adversely affecting the subordinate’s employment.” Id. at 728; see also Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 52 (1st Cir.2000) (“Under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.”). Retaliation, yet another basis for liability under Title VII, is discrimination against an employee because the employee has, inter alia, “opposed” an unlawful employment practice under Title VII or “made a charge ... or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). A retaliation claim requires a showing that (1) the plaintiff engaged in protected conduct; (2) she was subjected to an adverse employment action; and (3) there was a causal connection between the first and second elements. Noviello v. City of" }, { "docid": "5606272", "title": "", "text": "OPINION AND ORDER CASELLAS, District Judge. Pending before the Court is a motion for summary judgment filed by defendants Universidad Metropolitana, Rene Labarea, Luis R. Diaz Rivera, Carmen Bigas, Marta Ramos, Nilda Lopez, Maria del C. Monser-rat and Sistema Universitario Ana G. Mendez. (Doqket # 52). After a careful analysis of the parties’ argument and the applicable law, we GRANT defendants’ motion for summary judgment. Plaintiff Maria Virginia Hernandez Lor-ing (“Hernandez-Loring”) brings this action pursuant to 28 U.S.C. § 1332, claiming damages for negligence, under Article 1802 of Puerto Rico’s Civil Code. Hernandez-Loring, a linguistics professor hired by the Universidad Metropolitana, claims that university officials conducted her tenure evaluation in an arbitrary and capricious manner, and contrary to the criteria established by the University’s rules, regulations and procedures. Plaintiffs claim relies on two grounds; first, that one of the members of her review committee, Luis R. Diaz Rivera (“Diaz-Rivera”) was a known sexual harasser of students and faculty alike, and that he prevented her promotion in reprisal for plaintiffs refusal to succumb to his sexual advances. Furthermore, Hernandez-Lor-ing claims that the faculty committee which prevented her promotion to full professor was not properly qualified to review her qualifications and accomplishments. Finally, she contends that the “hostile work environment” created by Diaz-Rivera and University Chancellor Rene La-barca before, during, and after her petition for tenure compelled her to resign and seek employment elsewhere. Although she does not invoke any other source of federal jurisdiction, a review of her allegations lead this Court to conclude that she may invoke Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e-3 et. seq., pursuant to her sexual harassment claims. Despite the intertwined nature of her claims, we feel that a separate discussion of each claim would expedite the resolution of this case. Thus, we proceed to solve each claim seriatim. Applicable Law!Analysis As noted by the First Circuit, “[s]um-mary judgment has a special niche in civil litigation.” It serves “to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually" }, { "docid": "19840099", "title": "", "text": "was violating Title VII when she brushed against him. He also indicates, however, that she stopped when he asked her to do so. Plaintiff Rodriguez’s actions do not rise to the level of actions previously protected through the opposition clause of Title VII. Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir.2009) (listing “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges as examples of activity protected pursuant to Title VII). Plaintiffs also fail to argue any factual link between plaintiff Rodriguez’s request for Dr. Chevres to stop brushing up against him and any adverse employment action taken against plaintiff Colon. See Docket No. 30 at pp. 34-36. Furthermore, in her statement of uncontested facts, plaintiff Colon states that she believes Dr. Chevres mistreated her during this time because of “the sexual harassment perpetrated by Gonzalez-Amoros.” (Docket No. 30-2 at p. 15, ¶ 61.) Because plaintiff Colon cannot provide support for her contention that adverse employment actions were taken against her because of plaintiff Rodriguez’s actions, no reasonable jury would find such a link. Therefore, the Court GRANTS defendant’s motion for summary judgment on plaintiff Colon’s third-party retaliation claim. C. Plaintiff Rodriguez’s Sexual Harassment Claim Defendant Policlinica next argues that summary judgment should be granted in its favor on plaintiff Rodriguez’s sexual harassment claim. (Docket No. 21 at pp. 10-18.) Plaintiff Rodriguez argues that he can make out a quid pro quo harassment claim and a hostile work environment claim. (Docket No. 30 at pp. 14-26.) The Court finds plaintiff Rodriguez’s arguments unconvincing. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Sexual harassment is a form of sex-based discrimination. Quiñones v. Puerto Rico Hosp. Supply, Inc., 307 F.Supp.2d 352, 357 (D.P.R.2004). Sexual harassment can be proven under a quid pro quo claim or a hostile work environment claim. Id. 1. Quid Pro Quo Sexual Harassment “[Q]md" }, { "docid": "5606288", "title": "", "text": "As noted previously, plaintiff Hernandez-Loring contends that Luis Diaz-Rivera, as an influential member of her tenure review committee, prevented her promotion in retaliation for plaintiffs refusal to succumb to his sexual advances. In order for Hernandez-Loring to prevail pursuant to the doctrine of “quid pro quo” sexual harassment, she must prove: 1. that she was a member of a protected class; 2. that she was subject to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; 3. that the harassment complained of was based on sex; 4. that submission to the unwelcome advances was an expressed or implied condition for receiving job benefits or that refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and 5. the existence of respondeat superior liability. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 785 (1st Cir.1990); Ruiz v. Caribbean, 54 F.Supp.2d 97 (D.Puerto Rico 1999); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). Additionally, as noted previously, Hernandez-Loring contends that the “hostile work environment” created by Diaz-Rivera and Chancellor Rene Labarca before, during, and after her petition for tenure compelled her to resign and seek employment elsewhere. In order for plaintiff HernandezLoring to successfully bring a “hostile environment” sexual harassment claims, she must prove that: 1. she belongs to a protected group; 2. she was subjected to unwelcome sexual harassment; 3. the harassment was based on sex; 4. the harassment affected a term, condition or privilege of employment and; 5. the employer knew or should have known of the harassment and failed to take proper remedial action. Meritor Savings Bank v. Vinson, 106 S.Ct. at 2404; Ruiz v. Caribbean, 54 F.Supp.2d 97. Furthermore, plaintiff must allege that defendants actions were sufficiently severe or pervasive enough as to create an objectively hostile or abusive work environment — an environment that a reasonable" }, { "docid": "5606287", "title": "", "text": "to reverse the subjective judgment by the faculty members of the review committee with no evidence of discrimination against Plaintiff by the committee because of Plaintiffs age. In practically all walks of life, especially in business and the professions, someone must be charged with the ultimate responsibility of making a final decision, even as are the Courts. The computer, highly developed though it may be, is not yet qualified to digest the punch cards of an entire faculty and advise the waiting and expectant onlooker of its decision as to hiring or promotion. Even were it so capable a new rule would have to be added to appellate rules entitled “Appeal from a Computer.” Id. at 1352-53 (emphasis added) (citing Faro v. New York University, 502 F.2d 1229, 1232 (2nd Cir.1974)). Ordinarily, finding no egregious procedural miscarriages of justice in the committee’s decision to deny tenure to plaintiff, we would “stop looking further.” However, we must address the sexual harassment “twist” which plaintiff claims colored her denial of tenure. Title VII/Sexual Harassment Quid Pro Quo As noted previously, plaintiff Hernandez-Loring contends that Luis Diaz-Rivera, as an influential member of her tenure review committee, prevented her promotion in retaliation for plaintiffs refusal to succumb to his sexual advances. In order for Hernandez-Loring to prevail pursuant to the doctrine of “quid pro quo” sexual harassment, she must prove: 1. that she was a member of a protected class; 2. that she was subject to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; 3. that the harassment complained of was based on sex; 4. that submission to the unwelcome advances was an expressed or implied condition for receiving job benefits or that refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and 5. the existence of respondeat superior liability. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 785 (1st Cir.1990); Ruiz v. Caribbean, 54 F.Supp.2d 97 (D.Puerto Rico 1999); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Meritor Savings Bank, FSB v. Vinson, 477" }, { "docid": "22425992", "title": "", "text": "of Title VII sexual harassment law is helpful. A. Hostile Work Environment Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (West 2000). “[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” Harris, 510 U.S. at 22, 114 S.Ct. 367. Courts have long recognized that sexual harassment is “a form of gender discrimination prohibited by Title VII.” Provencher, 145 F.3d at 13. Title VII sexual harassment law has evolved considerably from its early focus on quid pro quo sexual harassment, where an employee or supervisor uses his or her superior position to extract sexual favors from a subordinate employee, and if denied those favors, retaliates by taking action adversely affecting the subordinate’s employment. See, e.g., Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988) (collecting cases). Title VII also allows a plaintiff to prove unlawful discrimination by showing that “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris, 510 U.S. at 21, 114 S.Ct. 367 (citations omitted). Further, Title VII protection is not limited to “economic” or “tangible” discrimination. Id. The Supreme Court has outlined the tests a plaintiff must meet to succeed in a hostile work environment claim: (1) that she (or he).is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based .upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiffs employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or" }, { "docid": "5606295", "title": "", "text": "a “hostile work environment” that she had no other alternative than to leave the University where she had worked for more than twenty years, and move to the state of Virginia with her husband. Despite Hernandez-Loring’s apparently harrowing tale, we must closely scrutinize her allegations. Although we must give all reasonable inferences to plaintiffs allegations, the timing and nature of Hernandez-Loring’s affidavit undermine any possibility of treating plaintiffs allegations as “reasonable inferences.” To reiterate the First Circuit’s admonition on the Court’s application of the federal summary judgment standards, a Court has an obligation to weed out claims whose claims rely on “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Plaintiffs allegations, have evolved in time from a mere claim of arbitrary denial of tenure, to a claim of “quid pro quo” sexual harassment and retaliation, to an additional claim of “constructive discharge” due to a hostile work environment, to further allegations of sexual harassment by Dean Rene Labarca, culminating in a conspiracy between Diaz-Rivera, Carmen Bigas, Marta Ramos, Nilda Lopez, Maria del C. Monserrat and Dean Rene Labarca to refuse Hernandez-Lor-ing’s tenure petition, motivated by Diaz-Rivera’s sexual frustrations toward plaintiff. Furthermore, her eleventh-hour flood of recollections regarding Diaz-Rivera and Chancellor Labarca’s sexual misconduct, conveniently remembered several months after her deposition and only after defendants had filed their motion for summary judgment, strikes the Court as specious, at best. A careful review of Hernandez-Loring’s deposition fails to reveal any substantive allegations of sexual misconduct or discriminatory animus by either Diaz-Rivera or Labarca towards plaintiff. A. I had a bad experience with Dr. Diaz. Q. With Dr. Diaz? A. Aha. Q. What was that bad experience about? A. When I was entering the room where they were projecting some slides Dr. Diaz made a very unpleasant remark. Q. Toward you? A. Toward me. Q. What did that remark consist of? A. Dr. Diaz told me that If I had done other things the results of my evaluation would have been different. Q. To what was Dr. Diaz referring about “other things,”" }, { "docid": "22915316", "title": "", "text": "in turn. I. Karibian’s Quid Pro Quo Claim Under the Guidelines established by the Equal Employment Opportunity Commission (“EEOC”), quid pro quo harassment occurs when “submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.” 29 C.F.R. § 1604.11(a)(2) (1993). See also Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir.1989). Accordingly, to establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F.2d 644, 648 (6th Cir.1986); Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982). Because the quid pro quo harasser, by definition, wields the employer’s authority to alter the terms and conditions of employment — either actually or apparently — the law imposes strict liability on the employer for quid pro quo harassment. See Kotcher, 957 F.2d at 62 (“The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee.”); Carrero, 890 F.2d at 579 (“[T]he harassing employee acts as and for the company, holding out the employer’s benefits as an inducement to the employee for sexual favors.”). Karibian argues that the district court erred when it required her to present evidence of actual, rather than threatened, economic loss in order to state a valid claim of quid pro quo sexual harassment. We agree. There is nothing in the language of Title VII or the EEOC Guidelines to support such a requirement. See Meritor, 477 U.S. at 64, 106 S.Ct. at 2404 (“[T]he language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination.”). True, in the typical quid pro quo case, the employee who refuses to submit to her supervisor’s advances can expect to suffer some job-related reprisal." }, { "docid": "14091023", "title": "", "text": "Rico. Sexual harassment can take place in two related ways: quid pro quo harassment or hostile environment harassment. Claims based on carried-out threats are often referred to as quid pro quo cases. The quid pro quo harassment occurs when a supervisor conditions job benefits upon the receipt of sexual favors from a subordinate, or punishes that subordinate for his/her refusal to comply with the sexual request(s). Quid pro quo sexual harassment requires, among other things, that plaintiffs refusal to submit to unwelcome sexual advances or requests for sexual favors result in tangible job detriment. See Ellett v. Big Red Keno, Inc., 2000 WL 1006743, 2000 U.S.App. Lexis 17583 (8th Cir.2000). Therefore, a plaintiff must produce evidence showing that the alleged harassment affected tangible aspects of their employment. For example, under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands. Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir.1999); Lipsett v. University of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988). However, “a supervisor’s mere threat or promise of job-related harm or benefits in exchange for sexual favors does not constitute quid pro quo harassment. ...” Gary v. Long, 59 F.3d 1391, 1396 (D.C.Cir.1995). See also Carrero v. New York City Housing Auth., 890 F.2d 569, 579 (2nd Cir.1989) (noting that the gravamen of a quid pro quo claim is a tangible job benefit or privilege conditioned on an employee’s submission to sexual blackmail and that adverse consequences follow the employee’s refusal); and Highlander v. K.F.C. Nat’l Mgmt., 805 F.2d 644, 649 (6th.Cir.1986) (where the court established that there is no cause of action for quid pro quo sexual harassment where the record is totally devoid of any evidence tending to demonstrate that plaintiff was denied a job benefit or suffered a job detriment as a result of her failure to engage in the activity suggested by defendant). Therefore, in order for Plaintiff to prevail pursuant to the doctrine of quid pro quo sexual harassment, he must prove: 1) that he was" }, { "docid": "5606302", "title": "", "text": "in photographic details in her affidavit, the Court will not consider plaintiffs eleventh-hour recollections. Buckner v. Sam’s Club, Inc., 75 F.3d 290 (7th Cir.1996); Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1424, 1430-31 (D.C.Ala.1996). In view of Hernandez-Loring’s uncorroborated, belated, and self-serving testimony, tailor-made to refute defendants’ summary judgment motion, coupled with the fact that she did not raise any color-able claims of sexual misconduct or impropriety during her tenure review or appeal process, we can only consider her testimony as a collage of “conclusory allegations, improbable inferences, and unsupported speculation,” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d at 8, that are insufficient “to block summary judgment” against her. J. Geils Band Employee Benefit Plan v. Smith Barney Inc., 76 F.3d 1245, 1251 (1st Cir.1996). Even assuming arguendo, that we accepted Hernandez-Loring’s account of Diaz-Rivera’s alleged sexual improprieties towards her, plaintiff must still establish a colorable claim that her denial of tenure by the review committee was directly linked to Diaz-Rivera’s need to quell his sexual revenge upon her. Having failed to establish any link between her denial of tenure and Diaz-Rivera’s discriminatory animus toward her, we cannot find a “quid pro quo” violation. Although the Supreme Court has recently held that there’s no need to establish the “quo” in the “quid pro quo” prong of sexual harassment claims, the Court is unable to discern any causal link between the merit-based objective performance rendered by at least 4 of the 5 committee members, and her claim for retaliation/sexual harassment. (See footnote 3, supra) Even assuming, arguendo, that Diaz-Rivera’s evaluation was indeed tainted by her contempt of Hernandez-Loring (motivated by plaintiffs objections to Diaz-Rivera’s elevation to full professor, as well as her refusal to cater to his sexual whims), we cannot possibly ascribe Rasputin-like qualities to this man, insofar as plaintiff alleges that Diaz-Rivera manipulated the entire committee to satisfy his own petty needs for revenge. Even assuming, as we must, for purposes of this summary judgment motion, that Diaz-Rivera harbored such grievous resentment toward plaintiff, we cannot conclude that his personal contempt tainted not only his evaluation, but" }, { "docid": "14091022", "title": "", "text": "intentional discrimination, a typical Title VII plaintiff alleging disparate treatment must employ the familiar burden-shifting framework enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir.1996). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of Title VII discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The specifications of the prima facie case vary depending on the nature of the discrimination claim. Id. at n. 13. However, after the U.S. Supreme Court’s.ruling in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), a complaint is an employment discrimination lawsuit need not set out the elements of a prima facie case as spelled out in McDonnell Douglas. In Meritor v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), while addressing the issue of sexual harassment in employment, the Supreme Court established several important rules, which are embodied in Law 17 of Puerto Rico. Sexual harassment can take place in two related ways: quid pro quo harassment or hostile environment harassment. Claims based on carried-out threats are often referred to as quid pro quo cases. The quid pro quo harassment occurs when a supervisor conditions job benefits upon the receipt of sexual favors from a subordinate, or punishes that subordinate for his/her refusal to comply with the sexual request(s). Quid pro quo sexual harassment requires, among other things, that plaintiffs refusal to submit to unwelcome sexual advances or requests for sexual favors result in tangible job detriment. See Ellett v. Big Red Keno, Inc., 2000 WL 1006743, 2000 U.S.App. Lexis 17583 (8th Cir.2000). Therefore, a plaintiff must produce evidence showing that the alleged harassment affected tangible aspects of their employment. For example, under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands. Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir.1999); Lipsett v. University of Puerto Rico, 864 F.2d" }, { "docid": "3503278", "title": "", "text": "the E.E.O.C. statute of limitations are not actionable). The majority of the courts follow what is essentially implicit in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) and Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988). Acts of hostile environment sexual harassment occurring years before the plaintiff files a formal complaint with the E.E.O.C. are not only relevant evidence of discrimination but actionable under Title VIL The Court, therefore, finds that Plaintiff’s untimely claims of a hostile environment do not have the degree of permanence that would require Plaintiff to file an E.E.O.C. complaint within 300 days of any of the alleged untimely acts. Plaintiffs complaint sufficiently raises a genuine issue of material fact as to whether Defendants continuously sexually harassed her until her dismissal from employment. C. Retaliation Claim: Defendants move to dismiss Plaintiffs claim that she was discharged from her employment on February 25, 1994 in retaliation for filing a sexual harassment complaint with the E.E.O.C. eight days earlier on February 17, 1994. Plaintiff asserts that Defendants’ retaliatory discharge violates Title VII, 42 U.S.C.A. § 2000e-3(a) (1994) and Puerto Rico’s Law 17, P.R. Laws Ann. tit. 29, § 155h (1991). In their arguments, both parties appropriately do not distinguish between the substantive law of Title VII and Puerto Rico’s Law 17. From the language of both statutes, it is quite apparent that the substantive law governing retaliatory discharge under Title VII and Puerto Rico’s Law 17 is the same. Both Title VII and Puerto Rico’s Law 17 prohibit an employer from discriminating against an employee because he has opposed the employer’s alleged unlawful employment practice, including the filing of a sexual harassment complaint with the E.E.O.C. Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994). “Where, as in this case and in retaliation cases generally, there is no direct evidence of the defendant’s retaliatory animus, the McDonnell Douglas burden-shifting framework is used to allocate and order the burdens of producing evidence.” Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996). Under the" }, { "docid": "19840100", "title": "", "text": "Colon cannot provide support for her contention that adverse employment actions were taken against her because of plaintiff Rodriguez’s actions, no reasonable jury would find such a link. Therefore, the Court GRANTS defendant’s motion for summary judgment on plaintiff Colon’s third-party retaliation claim. C. Plaintiff Rodriguez’s Sexual Harassment Claim Defendant Policlinica next argues that summary judgment should be granted in its favor on plaintiff Rodriguez’s sexual harassment claim. (Docket No. 21 at pp. 10-18.) Plaintiff Rodriguez argues that he can make out a quid pro quo harassment claim and a hostile work environment claim. (Docket No. 30 at pp. 14-26.) The Court finds plaintiff Rodriguez’s arguments unconvincing. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Sexual harassment is a form of sex-based discrimination. Quiñones v. Puerto Rico Hosp. Supply, Inc., 307 F.Supp.2d 352, 357 (D.P.R.2004). Sexual harassment can be proven under a quid pro quo claim or a hostile work environment claim. Id. 1. Quid Pro Quo Sexual Harassment “[Q]md pro quo harassment occurs when a supervisor conditions the granting of job benefits upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply with his/her sexual requests.” Hernandez Loring v. Universidad Metropolitana, 186 F.Supp.2d 81, 86 (D.P.R. 2002). To prove a claim for quid pro quo sexual harassment, a plaintiff “must prove: (1) that [he or] she was a member of a protected class; (2) that [he or] she was subject to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that harassment complained of was based on sex; (4) that submission to the unwelcome advances was an express or implied condition for receiving job benefits, or that refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability.” Id. “Title VTI’s prohibition of discrimination because of sex protects men as well as women.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)" } ]

[ { "docid": "10003289", "title": "", "text": "at 1135. In Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), we reviewed an “internal military decision[].” Indeed, courts often review cases in which military officials are alleged to have violated their own regulations. See, e.g., Feliciano v. Laird, 426 F.2d 424 (2d Cir.1970); Van Bourg v. Nitze, 388 F.2d 557 (D.C.Cir.1967). While we have occasionally denied re-viewability, see, e.g., Khalsa, 779 F.2d at 1400, the instant case is distinguishable, since the plaintiff is not a member of the “military services” and since no policy or function is implicated which is unmistakably military in nature. See, e.g., Gonzalez, 718 F.2d at 928. Unlike other decisions of this circuit and of the Supreme Court, see Khalsa, 779 F.2d at 1393; Gonzalez, 718 F.2d at 926; Wallace, 661 F.2d at 729; see also Mindes, 453 F.2d at 197, the military officer’s decision in this case does not readily lend itself to characterization as “inherently military.” Likewise, the plaintiff is not a member of the armed services. In Khalsa v. Weinberger, this court considered regulations pertaining to “soldiers’ appearance.” In Khalsa, however, we were not required to decide whether Mindes was applicable, since appearance regulations are unambiguously a matter of “inherent[ ] military” policy. Khalsa, 779 F.2d at 1397. Alternatively, Mindes, Wallace, and Gonzalez did not involve civilian plaintiffs employed by a U.S. military department. Finally, Bledsoe's claim is not sufficiently similar to a termination decision, cf. NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980), or a decision involving enlistment procedures, cf. Khalsa, 779 F.2d at 1393, to warrant dismissal, ipso facto, as interference with an “inherently military” decision. We hold that a Title VII claim brought by a female civilian employee of a military department and premised on denial of embarkation exclusively for gender, is justicia-ble. IV The Secretary argues that Bledsoe’s claim for back pay and equitable relief is moot. The Secretary reasons that since Bledsoe has been reassigned to duties aboard the USS Kitty Hawk and has been permitted to embark thereon, she has been fully compensated for any discrimination resulting from denial of embarkation aboard the USS Ranger. Similarly," } ]

[ { "docid": "22853887", "title": "", "text": "for submission of accurate, timely personnel and financial transactions. Keeping abreast of ever-changing personnel regulations and directives, SSG Watkins has provided sound advice to the commander as well as to the soldiers within the command. His suggestion to separate S-l and Personnel Action Center functions and to colocate the Personnel Action Center with the Company Orderly Rooms was adopted and immediately resulted in improved service by both offices. SSG Watkins’ positive influence has been felt throughout the Battalion and will be sorely missed. SSG Watkins’ potential is unlimited. He has consistently demonstrated the capacity to manage numerous complex responsibilities concurrently. He is qualified for promotion now and should be selected for attendance at ANCOES at the earliest opportunity. [Indorser’s Evaluation of Watkins’ performance and potential.] On appeal, a panel of this court reversed the district court’s injunction. Watkins v. United States Army, 721 F.2d 687, 691 (9th Cir.1983) [hereinafter Watkins I]. The panel reasoned that the equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or to the military’s statutory authority. Id. On remand, the district court held that the Army’s regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins’ motion for summary judgment and granted summary judgment in favor of the Army. Watkins again appealed and a divided panel of this court reversed the district court’s ruling. The panel held that the Army’s reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest. Watkins v. United States Army, 847 F.2d 1329, 1352-53 (9th Cir.1988) [hereinafter Watkins II]. The full court granted review to address the issues raised in Watkins I and Watkins II. We hold that the Army is estopped from barring Watkins’ reenlistment on the basis of his homosexuality. Accordingly, Watkins I no longer states the law of this circuit. Moreover, it is unnecessary to reach the" }, { "docid": "22854019", "title": "", "text": "Watkins I decision conflicts with prior decisions of this court. Watkins argues that Watkins I conflicts with three Ninth Circuit decisions. His contention is frivolous. In Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), the court rejected on the merits an Army reservist’s argument that the Army Reserve was equitably estopped from enforcing an age-based years-of-service limitation. As the justiciability issue was neither raised nor addressed, Lavin is of no prece-dential value on this point. Neither is Watkins I in conflict with Jablon v. United States, 657 F.2d 1064 (9th Cir.1981). Jablon held that the government had not waived its sovereign immunity with regard to a promissory estoppel claim by a service member. How this case advances Watkins' argument is incomprehensible. Finally, Watkins is wrong in arguing that Watkins / conflicts with Cortese v. United States, 782 F.2d 845 (9th Cir.1986). As the Army notes, the plaintiff in that case was a private contractor, so it did not raise the military discipline concerns at the heart of the justiciability doctrine. The Mindes doctrine does not present an obstacle to civilian claims against the military. Bledsoe v. Webb, 839 F.2d 1357, 1359 (9th Cir.1988). .The Mindes doctrine is analogous to the political question doctrine in limiting the types of disputes which courts are competent to resolve. See Khalsa v. Weinberger, 779 F.2d 1393, 1395 n. 1 (9th Cir.), prior judgment reaff'd, 787 F.2d 1288 (9th Cir.1985). Consequently, the doctrine refers \"to 'reviewability' rather than to ‘subject matter jurisdiction.’” Id. at 1396 n. 2. This dissent will use the term \"justiciability\" synono-mously with \"reviewability.” . The factors weighed in the second prong include: the nature and strength of plaintiffs claim; the potential injury to plaintiff; the type and degree of anticipated interference with the military function; and the level of military expertise and discretion. As Watkins’ equitable estoppel claim fails to satisfy the first prong of the Mindes test, the dissent does not analyze these four factors. In addition, this case does not require us to decide whether the cases rejecting constitutional claims under Mindes' second prong do so on the merits" }, { "docid": "22854018", "title": "", "text": "properly within the military’s judgment. In my view, Mindes absolutely forecloses Watkins’ claim that the Army is equitably estopped from refusing to reenlist him. The majority’s disposition of Watkins’ equitable estoppel claim is essentially unprecedented. The majority’s shallow treatment of precedent presents a misleading account of governing law. Finally, an examination of the merits of Watkins’ estoppel claim proves that the majority has failed to heed the Supreme Court’s admonition that the government is to be estopped only upon a showing of affirmative misconduct. Based upon the foregoing, I dissent. TROTT, J., concurs in the dissent; BEEZER, J., concurs in parts I, II, III, and the first paragraph of part V; GOODWIN, C.J., concurs in parts I and III. . A majority of the active judges on this court voted to consider en banc whether equal protec tion doctrine prohibits the Army's discrimination against homosexuals. While I do not dispute the court’s en banc power to address the equitable estoppel claim, I do not interpret the court’s decision to do so as meaning that the Watkins I decision conflicts with prior decisions of this court. Watkins argues that Watkins I conflicts with three Ninth Circuit decisions. His contention is frivolous. In Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), the court rejected on the merits an Army reservist’s argument that the Army Reserve was equitably estopped from enforcing an age-based years-of-service limitation. As the justiciability issue was neither raised nor addressed, Lavin is of no prece-dential value on this point. Neither is Watkins I in conflict with Jablon v. United States, 657 F.2d 1064 (9th Cir.1981). Jablon held that the government had not waived its sovereign immunity with regard to a promissory estoppel claim by a service member. How this case advances Watkins' argument is incomprehensible. Finally, Watkins is wrong in arguing that Watkins / conflicts with Cortese v. United States, 782 F.2d 845 (9th Cir.1986). As the Army notes, the plaintiff in that case was a private contractor, so it did not raise the military discipline concerns at the heart of the justiciability doctrine. The Mindes doctrine does not" }, { "docid": "22853975", "title": "", "text": "or failed to admit their sexual orientation. In that way, the Army would encourage, rather than discourage, declarations of homosexuality, thereby reducing the number of closet homosexuals who might indeed pose a security risk. Moreover, even if banning homosexuals could lessen security risks, there appears to be no reason for treating homosexuality as a nonwaivable disqualification from military service while treating other more serious potential sources of blackmail as waivable disqualifications. See AR 635-200, II 14-12(c) & (d) (making drug abuse and the commission of other serious military offenses waivable disqualifications). CONCLUSION The Army’s regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation, a suspect class, and because the regulations are not necessary to promote a legitimate compelling governmental interest. I would thus reverse the district court’s rulings denying Watkins’ motion for summary judgment and granting summary judgment in favor of the Army, and remand with instructions to enter a declaratory judgment that the Army Regulations A.R. 635-200, Chapter 15, and 601-280, ¶ 2-21(c), are constitutionally void on their face, and to enter an injunction requiring the Army to consider Watkins’ reenlistment application without regard to his sexual orientation. . Because I would grant Watkins the relief he seeks on the basis of his equal protection claim, I need not address in this concurring opinion Watkins’ other constitutional claims involving the free speech clause, the petition clause, and the due process entrapment doctrine. . The equal protection component of the Fifth Amendment imposes precisely the same constitutional requirements on the federal government as the equal protection clause of the Fourteenth Amendment imposes on state governments. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). . In this opinion I use the term \"sexual orientation\" to refer to the orientation of an individual’s sexual preference, not to his actual sexual conduct. Individuals whose sexual orientation creates in them a desire for sexual relationships with persons of the opposite sex have a heterosexual orientation. Individuals whose sexual orientation creates in" }, { "docid": "22853889", "title": "", "text": "constitutional issues raised in Watkins II. II. EXHAUSTION OF REMEDIES Before considering Watkins’ estoppel claim, we must determine the preliminary question whether Watkins has exhausted available intraservice remedies. Watkins submitted a timely application for reenlistment to his commanding officer, Captain Scott, on July 26, 1982. Following an interview with Watkins, Captain Scott denied his reenlistment request on July 28, 1982 because of Watkins’ admitted homosexuality. The Army’s position is that Watkins is ineligible for reenlistment due to a nonwaivable disqualification. Any further pursuit of intraservice remedies would therefore be fruitless. See Watkins, 551 F.Supp. at 217. As the district court stated, “This court will not require plaintiff to exhaust futile remedies.” Id. at 218. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983) (“Exhaustion of administrative remedies is not required where administrative remedies are inadequate or not efficacious, [or] where pursuit of administrative remedies would be a futile gesture_”). Because we find that Watkins has exhausted all effective intraservice remedies, we now proceed to review the merits of his estoppel claim. III. EQUITABLE ESTOPPEL A. Reviewability This circuit and others have noted that not all actions by the military are reviewable in the courts. See Note, “Judicial Review of Constitutional Claims Against the Military,” 84 Colum.L.Rev. 387, 397-403 (1984). In Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971), the Fifth Circuit articulated a test for ascertaining whether a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. Id. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff’s claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or" }, { "docid": "18061767", "title": "", "text": "have described this inflexible and absolute bar as necessary to prevent “the type of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” Id. at 535 (quoting United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (emphasis in original)). But that reasoning becomes a Action in a case such as this, which does not involve discretionary military decision-making and instead involves the military’s contravention of its own regulations and procedures. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 52 (2d Cir.1999); Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993); see also Watkins v. U.S. Army, 875 F.2d 699, 705-11 (9th Cir.1989) (en banc) (applying equitable estoppel to enjoin the U.S. Army from denying plaintiffs reenlistment on the basis of his homosexuality); Bledsoe v. Webb, 839 F.2d 1357, 1360 (9th Cir.1988) (“Indeed, courts often review cases in which military officials are alleged to have violated their own regulations.”). The Feres bar, then, prevents compensation for what would otherwise be judieially-reviewable acts in these cases. Cf. Wilkins v. United States, 279 F.3d 782, 784 (9th Cir.2002) (holding that “the Feres bar does not extend to the claims for non-monetary relief’). Consider Ritchie’s factual allegations. The complaint specifically alleges that the military performeddhe required pregnancy profile for January, but then failed to follow the profile’s limited duty requirements, as well as the additional instructions of January’s doctor as the pregnancy became high risk. In Ritchie’s administrative claim for damages, he elaborates that January “was required to engage in physical exercise and other duties against the advice of her physician resulting in the loss of the pregnancy at twenty-two weeks.” Of course, at some level, these alleged wrongful orders can be viewed as part of “the military discipline structure,” since January’s refusal to follow them would have been a subordinate’s refusal to carry out an order. Yet, this does not mean that the responsible superior officers’ decisions to disregard military policy and regulations amount to discretionary, nonjusticiable acts. See" }, { "docid": "22853897", "title": "", "text": "791 (1917)); see also Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Here, the Army affirmatively misrepresented in its official records throughout Watkins’ fourteen-year military career that he was qualified for reenlistment. On the one occasion when the record was unclear, Watkins sought clarification and his classification was immediately changed from “unknown” to “eligible for reentry on active duty.” During this entire fourteen-year period, the Army’s policy was that homosexuality constituted a nonwaivable disqualification for reenlistment. The Army has acknowledged, both in its brief in Watkins II and at oral argument before the en banc panel, that “[t]he 1981 regulations now in effect [AR 601-280, 112-21], which expressly bar enlistment or reenlistment of homosexuals, are regarded as a clarification, and not a change, of Army policy.” Army’s Brief in Watkins I at 6. Thus, the Army affirmatively acted in violation of its own regulations when it repeatedly represented that Watkins was eli gible to reenlist, as well as when it reenlisted him time after time. This case is readily distinguishable from Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), where we refused to estop the Army from denying an Army Reserve officer’s entitlement to pension benefits. In Lavin, the court found that while the Army had failed to determine Lavin’s pension eligibility status or to counteract any misunderstanding resulting from recruiters’ representations that benefits would be available to Lavin, this conduct did not amount to a “pervasive pattern of false promises” for which the government could be estopped. Id. at 1383. The court reasoned that although the Army’s conduct was perhaps negligent, the “mere failure to inform or assist does not justify application of equitable estoppel.” Id. at 1384 (citing INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973)). In addition, we stated that persons dealing with the government assume the risk that government agents may exceed their authority and provide misinformation, and observed that “Lavin chose trust over caution and he never attempted to confirm his eligibility.” Id. at 1383. In the present" }, { "docid": "18812827", "title": "", "text": "officer of the Central Security Facility revoked plaintiff’s security clearance by letter dated July 10,1980. Id. at 6. In February 1981 plaintiff appealed the revocation to the Office of the Assistant Chief of Staff for Intelligence. Amended Complaint, Exhibit J-2. The Assistant Chief of Staff’s Office stayed action on plaintiff’s appeal pending the determination whether separation proceedings under Chapter 15 would be commenced. Declaration of Ronald W. Morgan, filed April 12, 1982. Plaintiff brought this action on August 31, 1981 challenging the revocation of his security clearance because he had admitted to being homosexual and seeking to prevent his discharge from the Army for homosexuality. Separation proceedings were commenced under Chapter 15. An administrative discharge board recommended, 2-1, that plaintiff be given an honorable discharge, and plaintiff’s commanding officer approved that recommendation. The court ruled that the Army’s administrative double jeopardy provision precluded plaintiff’s discharge on grounds that he had admitted to being homosexual. The court also ordered briefing on the reenlistment issue, which had been raised by the pleadings. The Army maintains that plaintiff’s reenlistment claim lacks merit because (1) the Army’s decision to deny reenlistment is not subject to judicial review; (2) plaintiff’s claim is one of promissory estoppel and therefore barred against the United States; (3) even if viewed as an equitable estoppel claim, plaintiff’s claim must be barred because the United States acts in its sovereign capacity when it reenlists soldiers; and (4) the facts of this case do not support an equitable estoppel claim against the United States. I. JUDICIAL REVIEW The court does not agree that judicial review is inappropriate. Plaintiff alleges that denial of reenlistment based on his admitted homosexuality violates the Constitution, and that military regulations should not be applied so as to deny him reenlistment. Plaintiff has exhausted effective intraservice remedies. On July 26, 1982 plaintiff submitted a timely application for reenlistment to his commanding officer, Captain Rodger L. Scott. Captain Scott requested an interview with plaintiff pursuant to Army procedures. Since plaintiff’s counsel was unable to be present on the date set for the interview, counsel instructed plaintiff to refuse" }, { "docid": "19367629", "title": "", "text": "private sphere of individual liberty to be kept largely beyond the reach of government.” 478 U.S. at 203, 106 S.Ct. at 2850. Justice Blackmun also noted, however, that the homosexual act involved in Hardwick occurred in a private home and did not interfere with the rights or interests of others. 478 U.S. at 206, 106 S.Ct. at 2852. The present case involves entirely different circumstances; plaintiff is a member of the armed forces and her conduct, at the very least, has an impact upon other soldiers. Justice Blackmun’s comments in Hardwick, whatever their merit in the civilian world, are clearly not applicable to a lesbian in the military service. The privacy expectations of a civilian, wherever their outer limit may be, cannot be compared to the substantially more limited privacy expectations accompanying military life. Plaintiff in the present case voluntarily sacrificed much personal privacy and liberty by deliberately seeking to be in the Army where privacy and liberty are necessarily at a premium. In a recent en banc case, Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989), the Ninth Circuit considered a case somewhat similar to the present case. The Watkins majority held that the Army was equitably estopped from refusing to reenlist Watkins on the basis of his homosexuality because the Army had overlooked his homosexuality in the past. Estoppel was not made an issue in the present case, although possibly it could have been. Therefore, although we find the Ninth Circuit’s estoppel application doubtful, we need not reach that issue. Judge Norris, however, in a concurrence joined by Judge Canby, would have decided Watkins against the Army on equal protection grounds. Judge Norris stated that homosexuals are entitled to suspect class protection. Discrimination against homosexual orientation, he reasoned, is “about as complete as one could imagine” under the regulations. Watkins, 875 F.2d at 716. Judge Norris disregarded Hardwick because it was decided on due process, not equal protection grounds. Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987), was also considered by Judge Norris. The Padula court rejected an equal protection challenge to the FBI’s policy of not" }, { "docid": "22853888", "title": "", "text": "absent a determination that the regulations were repugnant to the Constitution or to the military’s statutory authority. Id. On remand, the district court held that the Army’s regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins’ motion for summary judgment and granted summary judgment in favor of the Army. Watkins again appealed and a divided panel of this court reversed the district court’s ruling. The panel held that the Army’s reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest. Watkins v. United States Army, 847 F.2d 1329, 1352-53 (9th Cir.1988) [hereinafter Watkins II]. The full court granted review to address the issues raised in Watkins I and Watkins II. We hold that the Army is estopped from barring Watkins’ reenlistment on the basis of his homosexuality. Accordingly, Watkins I no longer states the law of this circuit. Moreover, it is unnecessary to reach the constitutional issues raised in Watkins II. II. EXHAUSTION OF REMEDIES Before considering Watkins’ estoppel claim, we must determine the preliminary question whether Watkins has exhausted available intraservice remedies. Watkins submitted a timely application for reenlistment to his commanding officer, Captain Scott, on July 26, 1982. Following an interview with Watkins, Captain Scott denied his reenlistment request on July 28, 1982 because of Watkins’ admitted homosexuality. The Army’s position is that Watkins is ineligible for reenlistment due to a nonwaivable disqualification. Any further pursuit of intraservice remedies would therefore be fruitless. See Watkins, 551 F.Supp. at 217. As the district court stated, “This court will not require plaintiff to exhaust futile remedies.” Id. at 218. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983) (“Exhaustion of administrative remedies is not required where administrative remedies are inadequate or not efficacious, [or] where pursuit of administrative remedies would be a futile gesture_”). Because we find that Watkins has exhausted all effective intraservice remedies, we now proceed to review the merits of his estoppel" }, { "docid": "22853996", "title": "", "text": "that the Army is equitably estopped from refusing to reenlist him due to the Army’s long-standing knowledge of his homosexuality. I dissent from this holding as an unwarranted application of common law principles to matters within the military’s expertise. I The original panel in this case held that courts should not review internal military affairs absent “an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983) (“Watkins I”). The Watkins I court took this prerequisite to judicial review of internal military decisions verbatim from the test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for determining the justiciability of claims concerning internal military affairs. The first prong of the Mindes test requires “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Mindes, 453 F.2d at 201. If these prerequisites are met, a court proceeds to the second prong, which requires weighing four factors. Most circuits have adopted the Fifth Circuit’s Mindes test. Furthermore, Mindes is well-established in the Ninth Circuit. In a straightforward application of Mindes’ first prong, the Watkins I panel found a claim of equitable estoppel to be nonjusticiable because this type of common law claim is not premised on the deprivation of constitutional rights or the violation of applicable statutes or regulations. These prerequisites to judicial scrutiny of military affairs serve to advance a widely recognized goal: minimizing “judicial inquiry into, and hence intrusion upon, military matters.” United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 3063, 97 L.Ed.2d 550 (1987). While the majority acknowledges that our cases have accepted the limited nature of judicial regulation of military affairs, it fails to explore how the Mindes prerequisites further this objective. Indeed, the majority does not argue that limiting judicial review to federal constitutional, statutory, and regulatory claims is a bad" }, { "docid": "22853995", "title": "", "text": "is a recurring one, I think I may appropriately reach it even though equitable estoppel may dispose of the case. CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting. Sergeant Perry Watkins has proven himself to be a loyal, talented, and honest soldier. . The majority is rightly impressed by Watkins’ uniformly outstanding performance evaluations and the persistent efforts of his immediate superiors to insure his continued advancement in the United States Army. I share the majority’s admiration of Watkins’ fine service to his country. Watkins’ record has but one blemish under Army regulations: his homosexuality. Watkins brought this lawsuit seeking to enjoin the Army from considering his homosexuality in passing upon the merits of his reenlistment application. During Watkins’ tenure, Army regulations have always precluded the enlistment of homosexuals. The gravamen of Watkins’ claim is that such discrimination against homosexuals constitutes a violation of his right to equal protection under the fifth amendment. The en banc majority shies away from this issue, however, and grants Watkins the relief he seeks on an alternative rationale. The majority holds that the Army is equitably estopped from refusing to reenlist him due to the Army’s long-standing knowledge of his homosexuality. I dissent from this holding as an unwarranted application of common law principles to matters within the military’s expertise. I The original panel in this case held that courts should not review internal military affairs absent “an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983) (“Watkins I”). The Watkins I court took this prerequisite to judicial review of internal military decisions verbatim from the test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for determining the justiciability of claims concerning internal military affairs. The first prong of the Mindes test requires “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice" }, { "docid": "12299930", "title": "", "text": "disfavored. C. Equitable Estoppel Doe raises for the first time before this Court the argument that the Navy’s past conduct toward him equitably estops it from denying him prospective reassignment to the NRCR program, relying heavily on the Ninth Circuit’s recent decision in Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989) (en banc). Because Doe failed to raise this contention before the district court, we need not address it on appeal. Cf. In re Daikin Miami Overseas, Inc., 868 F.2d 1201, 1207 (11th Cir.1989) (issue not raised below may be considered where “pure question of law” is involved and refusal to consider it “would result in a miscarriage of justice”)- In the interest of responding fully to all aspects of Doe’s claim, however, we note that Doe’s analogy to Watkins is strained indeed. In Watkins, the Army had refused to reenlist a career soldier with an outstanding record solely on the basis of his admitted homosexuality, despite the fact that the Army had repeatedly reenlisted him over the previous fifteen years, in violation of its own regulations and with full knowledge of his homosexual orientation, which he had candidly and repeatedly acknowledged over the years. See Watkins, 875 F.2d at 701-03. The Ninth Circuit held that the Army had induced Watkins’s reliance on its previous course of conduct and was therefore equitably estopped from refusing to reenlist him. See id. at 709-11. In this case, by contrast, Doe has never relied to his detriment on any violation by the Navy of its own regulations. Doe challenged the Navy’s termination of his NRCR assignment in 1986 as being in violation of the 1985 regulation, and the BCNR ultimately agreed that under that regulation Doe was entitled to serve out his term through September 30,1987. Thereafter, the Navy has refused to reenlist Doe in the NRCR program, in accordance with its 1987 regulation. Unlike the situation in Watkins, the Navy has never led Doe to believe that he has any expectation of serving in the NRCR program in violation of the regulations excluding HIV-positive individuals. Doe’s estoppel claim thus lacks" }, { "docid": "18812832", "title": "", "text": "of plaintiff’s request for reenlistment. The decision was automatic. Second, the court’s examination of the Army’s reenlistment decision concerning a single servicemember can cause very little disruption of the overall military function. Defendants’ contention that the floodgates will be opened to exotic claims by other servicemembers is unpersuasive. The facts demonstrate the uniqueness of plaintiff’s case. The prerequisites for judicial review established by Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), have been satisfied here. II. PROMISSORY ESTOPPEL Defendants characterize plaintiff’s claim as one for promissory estoppel, arguing strenuously that plaintiff is trying to use estoppel to create a right to reenlist, rather than as a shield against a defense raised by the Army. So characterized, they contend that plaintiff’s claim does not lie against the United States. See Jablon v. United States, 657 F.2d 1064, 1069-70 (9th Cir.1981). “[Pjromissory estoppel is used to create a cause of action, whereas equitable estoppel is used to bar a party from raising a defense or objection it otherwise would have .... ” Id. at 1068. The court does not read plaintiff’s request so broadly. Plaintiff’s argument is not that he has a right to reenlist. His argument is that the Army cannot deny him reenlistment because of his homosexuality. He asserts that, but for the Army’s reliance on the military regulation making homosexuality a “nonwaivable disqualification,” he is eligible for reenlistment. Accordingly, plaintiff seeks to estop defendants from relying on the regulation as a bar to his eligibility for reenlistment. Promissory estoppel is not a part of this case. Defendants note in passing that Army Regulation (AR) 601-280, ¶ l-6a permits the Secretary to deny reenlistment to “anyone, including those who otherwise meet the criteria specified in this regulation.” The Army clearly has not relied on this regulation in denying plaintiff reenlistment. It has relied on plaintiff's admitted homosexuality, as the record reflects. A denial of reenlistment at this point for “no reason” would therefore lack any foundation. III. SOVEREIGNTY Defendants argue next that equitable estoppel cannot be asserted against the United States when it acts in its sovereign capacity. In this" }, { "docid": "12299929", "title": "", "text": "92 (1977); Buxton, 871 F.2d at 1042 & n. 4. Doe has never disputed that he does in fact carry the AIDS virus, the basis for the Navy’s disputed “employment decisions” in this case. Because he does not claim falsity, he has failed to raise any “factual dispute ... which has some significant bearing on [his] reputation.” Codd, 429 U.S. at 627, 97 S.Ct. at 884. Because Doe’s due process claim so clearly fails on the merits, we need not consider at any length the district court’s initial finding that Doe's claim is unreviewable under Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971), which set forth a four-part balancing test governing the judicial reviewability of constitutional challenges to military personnel decisions. Cf. Stinson, 821 F.2d at 1540-41 (district court must apply Mindes analysis before reaching merits of constitutional claim). We find nothing objectionable in the district court’s application of Mindes, and we think it clear that under Mindes factors one and three, at least, review of Doe’s due process claim in this case is disfavored. C. Equitable Estoppel Doe raises for the first time before this Court the argument that the Navy’s past conduct toward him equitably estops it from denying him prospective reassignment to the NRCR program, relying heavily on the Ninth Circuit’s recent decision in Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989) (en banc). Because Doe failed to raise this contention before the district court, we need not address it on appeal. Cf. In re Daikin Miami Overseas, Inc., 868 F.2d 1201, 1207 (11th Cir.1989) (issue not raised below may be considered where “pure question of law” is involved and refusal to consider it “would result in a miscarriage of justice”)- In the interest of responding fully to all aspects of Doe’s claim, however, we note that Doe’s analogy to Watkins is strained indeed. In Watkins, the Army had refused to reenlist a career soldier with an outstanding record solely on the basis of his admitted homosexuality, despite the fact that the Army had repeatedly reenlisted him over the previous fifteen years, in violation" }, { "docid": "19367630", "title": "", "text": "F.2d 699 (9th Cir.1989), the Ninth Circuit considered a case somewhat similar to the present case. The Watkins majority held that the Army was equitably estopped from refusing to reenlist Watkins on the basis of his homosexuality because the Army had overlooked his homosexuality in the past. Estoppel was not made an issue in the present case, although possibly it could have been. Therefore, although we find the Ninth Circuit’s estoppel application doubtful, we need not reach that issue. Judge Norris, however, in a concurrence joined by Judge Canby, would have decided Watkins against the Army on equal protection grounds. Judge Norris stated that homosexuals are entitled to suspect class protection. Discrimination against homosexual orientation, he reasoned, is “about as complete as one could imagine” under the regulations. Watkins, 875 F.2d at 716. Judge Norris disregarded Hardwick because it was decided on due process, not equal protection grounds. Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987), was also considered by Judge Norris. The Padula court rejected an equal protection challenge to the FBI’s policy of not hiring homosexuals. That holding was likewise rejected by Judge Norris on the basis that the Padula court summarily rested its decision on the false premise that Hardwick foreclosed any finding that homosexuals are a suspect class. We, however, find no fault with Padula and believe its equal protection reasoning to be as applicable to the Army as to the FBI. Judge Norris further rejected the Army’s asserted justifications because he explained that they illegitimately cater to private biases. Watkins, 875 F.2d at 728. We respectfully disagree, as we believe that this particular classification is supported by military considerations and should be left to the Army. We do not believe that the concerns set forth in the military policy and regulation can be so easily dismissed as mere prejudice, though individual prejudice no doubt exists in the military and elsewhere. The new regulation, we find, clearly promotes a legitimate government interest sufficient to survive rational basis scrutiny. We agree with Judge Hall, who wrote in dissent in Watkins, that “[tjhere is no doubt that the majority’s" }, { "docid": "8386368", "title": "", "text": "affirmative non-monetary relief. McEniry v. United States, 7 Cl.Ct. 622, 625 (1985) (dismissing servicemember’s claim for reinstatement with back pay). Although the United States paints Wilkins's claim as a military discharge case that has been dolled up with constitutional claims, this view overlooks the crux of Wilkins’s case — a First Amendment challenge to the very structure of the Chaplain Corps. His significant constitutional claims go well beyond a mere personnel action. See Denton v. Schlesinger, 605 F.2d 484, 487-88 (9th Cir.1979). Nor can his claims be shoehorned into the statutory extension of the Court of Federal Claims jurisdiction “incident of and collateral to [a] judgment.” 28 U.S.C. § 1491(a)(2). Broad-based declaratory and injunctive re lief regarding Navy policies affecting the structure of the military chaplaincy can hardly be characterized as “collateral to” reinstatement or a money judgment for Wilkins. The Court of Claims, therefore, does not have jurisdiction over Wilkins’s non-monetary claims. B. Feres Doctrine Wilkins’s plea for declaratory and injunctive relief presents the narrow question of whether the Feres doctrine bars claims for non-monetary relief. Although the Supreme Court has not spoken directly to this issue, its Feres jurisprudence points to the conclusion that Feres applies only to money damages. To conclude otherwise would leave military personnel without judicial recourse to challenge unconstitutional policies. Historically, both the Supreme Court and the lower courts have entertained such challenges. See, e.g., Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (Free Exercise challenge to policy prohibiting wearing of yarmulke); Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (Equal Protection challenge to male-only draft registration); Brown v. Glines, 444 U.S. at 354, 100 S.Ct. 594 (First Amendment challenge to restrictions of on-base petition circulation); Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126 (9th Cir.1997) (constitutional challenges to Don’t Ask/Don’t Tell policy); Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989) (estoppel claim challenging failure to reenlist known homosexual); Gen. Media Communications v. Cohen, 131 F.3d 273 (2d Cir.1997) (constitutional challenges to prohibition on sale of pornography); Katcoff v. Marsh, 755" }, { "docid": "18812828", "title": "", "text": "reenlistment claim lacks merit because (1) the Army’s decision to deny reenlistment is not subject to judicial review; (2) plaintiff’s claim is one of promissory estoppel and therefore barred against the United States; (3) even if viewed as an equitable estoppel claim, plaintiff’s claim must be barred because the United States acts in its sovereign capacity when it reenlists soldiers; and (4) the facts of this case do not support an equitable estoppel claim against the United States. I. JUDICIAL REVIEW The court does not agree that judicial review is inappropriate. Plaintiff alleges that denial of reenlistment based on his admitted homosexuality violates the Constitution, and that military regulations should not be applied so as to deny him reenlistment. Plaintiff has exhausted effective intraservice remedies. On July 26, 1982 plaintiff submitted a timely application for reenlistment to his commanding officer, Captain Rodger L. Scott. Captain Scott requested an interview with plaintiff pursuant to Army procedures. Since plaintiff’s counsel was unable to be present on the date set for the interview, counsel instructed plaintiff to refuse to answer questions concerning this lawsuit. See Affidavit of Jim Lobsenz (filed Sept. 14,1982); Declaration of Captain Rodger L. Scott (filed Sept. 13,1982); Declaration of Captain Russell D. Johnson (filed Sept. 24, 1982). Plaintiff’s counsel did not indicate that plaintiff would refuse to answer questions at an interview at which counsel could be present. See Affs. of Jim Lobsenz (Sept. 14, 1982; Sept. 30, 1982). No such interview has yet occurred. Captain Scott denied plaintiff’s reenlistment request on July 28, 1982 for the following reasons: Because of self admitted homosexuality as well as homosexual acts and his refusal to answer questions concerning his homosexuality or homosexual acts. Attachment A to Lobsenz Aff. (filed Sept. 14, 1982). Captain Scott’s finding that plaintiff has refused to answer questions is totally unsupported by the evidence and cannot stand. See Sanford v. United States, 399 F.2d 693, 694 (9th Cir.1968) (per curiam); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974); 5 U.S.C. § 706(2)(A), (D). See Declarations of Captain Russell D. Johnson (filed Sept. 24, 1982); Affidavit of" }, { "docid": "18061766", "title": "", "text": "that allowed servicemembers to bring certain tort claims against their superior officers. See United States v. Stanley, 483 U.S. 669, 698-99, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Brennan, J., dissenting) (“At common law, even military superiors received no exemption from the general rule that officials may be held accountable for their actions in damages in a civil court of law.”). Nor is the broad bar of Feres supported by the text of the FTCA, which explicitly excludes only “claim[s] arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j); Johnson, 481 U.S. at 692, 107 S.Ct. 2063 (Scalia, J., dissenting) (“The problem now, as then, is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”). Unfortunately, the deferential reasoning of Feres has created an almost complete bar to servicemembers’ tort claims, regardless of whether the facts actually warrant judicial abstention. See Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987) (per curiam). We have described this inflexible and absolute bar as necessary to prevent “the type of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” Id. at 535 (quoting United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (emphasis in original)). But that reasoning becomes a Action in a case such as this, which does not involve discretionary military decision-making and instead involves the military’s contravention of its own regulations and procedures. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 52 (2d Cir.1999); Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993); see also Watkins v. U.S. Army, 875 F.2d 699, 705-11 (9th Cir.1989) (en banc) (applying equitable estoppel to enjoin the U.S. Army from denying plaintiffs reenlistment on the basis of his homosexuality); Bledsoe v. Webb, 839 F.2d 1357, 1360 (9th Cir.1988) (“Indeed, courts often review cases in which military officials are alleged to have violated their own regulations.”). The Feres bar," }, { "docid": "18812845", "title": "", "text": "of Military Justice, 10 U.S.C. •§§ 885, 890, 892. By the same token, the Army made a commitment to plaintiff to pay him and to permit him to serve during each of the enlistment and reenlistment periods. Had the Army failed to pay plaintiff or disallowed plaintiff from serving, plaintiff just as certainly could have sought enforcement of the Army’s obligations. See 37 U.S.C. § 204; Bell v. United States, 366 U.S. 393, 401-04, 81 S.Ct. 1230, 1235-36, 6 L.Ed.2d 365 (1961). The court does not hear the Army to argue that Sgt. Watkins was bound by his contracts with the Army but that the Army was not also bound. The Army’s position, rather, is that even though responsible Army officers decided to enlist, reenlist, retain and promote plaintiff, plaintiff had no right to expect that those privileges would continue to be extended. In essence, the Army contends that plaintiff assumed the risk that his Army career would be discontinued at any time based on his homosexuality. The court cannot agree. Plaintiff declared his homosexuality to the Army from the very beginning, and even if he was not believed at first, doubt that he was in fact homosexual was resolved in 1968 when plaintiff admitted to engaging in relations with other servicemen. Plaintiff was candid with the Army about his homosexuality; that factor is central to this case. Clearly the decision to enlist or reenlist a soldier is not a casual decision. See, e.g., AR 601-210, ¶ l-6a; AR 601-280, ¶ 1-7. An applicant must be processed to “ensure” that he or she meets the requirements. Id. ¶ 2-2. Likewise, the decision of an administrative board of officers, convened specially to determine whether a particular soldier should be separated due to homosexuality, is a well-considered decision. And granting a servicemember a position in the Nuclear Surety Program, which requires a “Secret” security clearance and a background investigation check, is again a serious decision by the military. On each of many occasions the Army told plaintiff his homosexuality was not disqualifying. This is the essence of plaintiff’s estoppel claim. Plaintiff had" } ]

[ { "docid": "11857037", "title": "", "text": "to dismiss or affirm shall be filed with the .clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure. The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four' copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERI-TORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165; United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167; United States of America v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc., 5th Cir. 1969, 406 F.2d 1170 and National Labor Relations Board v. The Great Atlantic & Pacific Tea Company, Inc., 5th Cir. 1969, 406 F.2d 1173." } ]

[ { "docid": "11888583", "title": "", "text": "in Rules 18 and 19. . E. g., Fox v. Dutton, 5th Cir. 1968, 406 F.2d 123 [December 12, 1968] ; Reardon v. Smith, supra; Henderson v. Dutton, 5th Cir. 1968, 397 F.2d 375; Peters v. Rutledge, 5th Cir. 1968, 397 F.23 731; State of Texas v. Payton, 5th Cir. 1968, 390 F.2d 261. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir., 406 F.2d 1158 [January 2, 1969]. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165; United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167; United States of America v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5th Cir. 1969, 406 F.2d 1170 ; National Labor Relations Board v. Great Atlantic & Pacific Tea Company, Inc., 5th Cir. 1969, 406 F.2d 1173; and Thompson v. White, Warden, 5th Cir. 1969, 406 F.2d 1176. . Montos testified that he believes the sentence “was specified to be concurrent.” This testimony, however, is inconsistent with prior testimony and the. statement of his counsel at the evidentiary hearing, and the district judge, as the trier of fact, was free to reject it. See Tyler v. Beto, 5th Cir. 1968, 391 F.2d 993." }, { "docid": "1715226", "title": "", "text": "hearing is requested or had. We disagree with such contention. Appellant further argues that the Secretary’s Regulation, 20 C.F.R. § 404.916, cited above, is in conflict with the statute which provides for judicial review —§ 405(g). This section, so it is argued, provides for review “after any final decision of the Secretary made after a hearing to which he was a party.” Whether or not there shall be such a hearing is entirely within the control of the applicant. He can fail to exercise such right and let the finality of denial of benefits mature before the provisions of § 405(g) or (h) become procedurally useable. The regulation, § 404.937, providing that res judicata maybring finality to denial of benefits, does not impair the right of review provided in § 405 of the statute. There have been some District Court cases which appear to be in conflict with the foregoing by refusing to apply res judicata where there was no hearing. Gilliam v. Gardner, 284 F.Supp. 529 (D. S.C.1968); Townend v. Cohen, 296 F. Supp. 789 (W.D.Pa.1969); Liles v. Finch, S.D.Ohio, No. 7,092 (March 18, 1970). Without setting out our analysis of them, we are satisfied that either their facts forbid their being considered as analogous to the matter at bar, or we respectfully decline to follow them. We consider that the following cases represent the better rule and are supportive of what we have said: Domozik v. Cohen, 413 F.2d 5 (3rd Cir. 1969); Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969); Easley v. Finch, 431 F.2d 1351 (4th Cir. 1970); Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971). In Leviner v. Richardson, swpra, the Fourth Circuit dealt specifically with the contention that res judicata may not apply until a hearing has been had. The Court said: “The sole legal question in this case is whether the doctrine of res judicata is applicable where no hearing was requested on the prior claim so that the Secretary’s determination became final without a hearing. The only Court of Appeals which has considered the question is that of the Third" }, { "docid": "8065881", "title": "", "text": "6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158 [Jan. 2, 1969]. See also United States v. One Olivetti Electric 10-Key Adding Machine, 5 Cir., 1969, 406 F.2d 1167 ; United States v. One 6.5 mm. Mannlicher-Garcano Military Rifle, 5 Cir., 1969, 406 F.2d 1170 ; Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165 ; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173 ; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176 ; Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750. The First Circuit has likewise upheld summary disposition without oral argument. See Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516. . A companion case, Wetherington v. Adams, 5 Cir., 1969, 406 F.2d 724, presented the same substantive question as that raised here. In Wetherington, this Court considered the merits of the claim, reversed the District Court’s dismissal, and remanded for the convening of a three-judge court. It thus became another unnecessary, duplicated hearing in the District Court which the procedure set out in Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910 ; Jackson v. Department of Public Welfare of the State of Florida, S.D.Fla., 1968, 296 F.Supp. 1341, will largely obviate. . The gist of the complaint was that the statutes in question were violative of the equal protection clause of the fourteenth amendment, because they resulted in unreasonable discrimination between potential candidates of financial means and those without the funds necessary to pay the fee and assessment. . F.R.Civ.P. 73(a). . See note 5 supra and accompanying text. Rule 73 was abrogated effective July 1, 1968. The provisions of the rule are now found in FRAP Rule 4, and there has been no change of substance. See generally 3A Barron & Holtzoff, Federal Practice & Procedure § 1553 (Supp. 1968, Wright ed.). At the time the motion to extend" }, { "docid": "858195", "title": "", "text": "decision of the cause depends are so unsubstantial as not to need further argument. The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure. The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for, and propriety of, summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158. For cases heretofore placed on the summary calendar, see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165; United States v. One Olivetti Electric 10-Key Adding Machine, etc., 5 Cir., 1969, 406 F.2d 1167; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5 Cir., 1969, 406 F.2d 1170; N.L.R.B. v. The A. & P." }, { "docid": "11888582", "title": "", "text": "receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing para graph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . E. g., Fox v. Dutton, 5th Cir. 1968, 406 F.2d 123 [December 12, 1968] ; Reardon v. Smith, supra; Henderson v. Dutton, 5th Cir. 1968, 397 F.2d 375; Peters v. Rutledge, 5th Cir. 1968, 397 F.23 731; State of Texas v. Payton, 5th Cir. 1968, 390 F.2d 261. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir., 406 F.2d 1158 [January 2, 1969]. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165; United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167; United States of America v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5th Cir. 1969," }, { "docid": "3477822", "title": "", "text": "1969, 407 F.2d 131; NLRB v. Monroe Auto Equip. Co., 5 Cir. 1969, 406 F.2d 177, cert. denied 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270; NLRB v. Genesco, Inc., 5 Cir.1969, 406 F.2d 393; NLRB v. Smith Industries, Inc., 5 Cir. 1968, 403 F.2d 889; Howell Refining Co. v. NLRB, 5 Cir. 1968, 400 F.2d 213; NLRB v. Ortronix, Inc., 5 Cir. 1967, 380 F.2d 737; United States Rubber Co. v. NLRB, 5 Cir. 1967, 373 F.2d 602. . Our review here of a directed election case is not affected by suggestions which might lead to a narrower scope of judicial review in consent election cases. See generally Annot., 36 A.L.R.2d 1170, 1183, (1954). Compare Carlisle Paper Box Co. v. NLRB, 3 Cir. 1968, 398 F.2d 1, 5-6 and Manning, Maxwell & Moore, Inc. v. NLRB, 5 Cir. 1963, 324 F.2d 857, 858 with NLRB v. Sidran, 5 Cir. 1950, 181 F.2d 671, 673. See also Pepperell Mfg. Co. v. NLRB, 5 Cir. 1968, 403 F.2d 520, 522, cert. denied May 26, 1969, 395 U.S. 922, 89 S.Ct. 1774, 23 L.Ed.2d 238. . Since we deny enforcement on the basis of the Board’s application of its own “laboratory conditions” standard, we need not consider the implications of the Board’s application of its no relitigation rule, 29 C.F.R. § 102.67(f), in the § 10 proceeding notwithstanding its denial of review in the § 9 proceeding. But see Pepsi-Cola Buffalo Bottling Co. v. NLRB, 2 Cir. 1969, 409 F.2d 676. . See, e. g., Raytheon Co., 173 N.L.R.B. No. 10, 1968-2 CCH NLRB ¶ 20,216 (employer solicited employee grievances and offered “vote no” buttons) ; Anchor Coupling Co., Inc., 168 N.L.R.B. No. 40, 1968-1 CCH NLRB ¶ 21,908 (supervisor contact with only 3 of 120 employees) ; International Mfg. Co., Inc., 167 N.L.R.B. No. 105, 1968-1 CCH NLRB ¶ 21,814 (supervisor statements to 6 of 730 employees): Nationwide Papers, Inc., 147 N.L.R.B. 1030, 1964 CCH NLRB ¶ 13,226 (warning of drastic economic detriment) ; Great A & P Tea Co., Inc., 140 N.L.R.B. 133, 1962 CCH NLRB ¶ 11,839 (employer" }, { "docid": "23497400", "title": "", "text": "Wainwright, 5 Cir., 1969, 406 F.2d 1241; Boukater v. United States, 5 Cir., 1969, 409 F.2d 537; Williams v. Anderson, 5 Cir., 1969, 407 F.2d 348; Boutwell v. Simpson, 5 Cir., 1969, 408 F.2d 629; NLRB v. Garland Knitting Mills, 5 Cir., 1969, 408 F.2d 672; Nelson v. United States, 5 Cir., 1969, 406 F.2d 1322; Morgan v. Underwood, 5 Cir., 1969, 406 F.2d 1253; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173. The First Circuit has likewise upheld summary disposition without oral argument. See Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516, cert. denied, 1969, 393 U.S. 1065, 89 S.Ct. 720, 21 L.Ed.2d 708. The Ninth Circuit, too, has adopted a rule providing for summary affirmance. See Page v. United States, 9 Cir., 1966, 356 F.2d 337. . See note 1, supra. . The brief filed in this Court on behalf of Floyd contains undertones of this “punishment” argument. It is true, of course, that to enforce lawful judgments it is sometimes necessary to employ coercive measures, such as contempt proceedings, execution, etc. However, as we have already stated, we do not think that the Back Pay Act was intended to be used as one of these measures." }, { "docid": "22758489", "title": "", "text": "52 (C. A. 7th Cir. 1967). After our grant of certiorari in the present case; three more courts of appeals explicitly upheld the Excelsior rule and the procedure by which it was adopted, NLRB v. Beech-Nut Life Savers, Inc., 406 F. 2d 253 (C. A. 2d Cir. 1968); British Auto Parts, Inc. v. NLRB, 405 F. 2d 1182 (C. A. 9th Cir. 1968); NLRB v. Q-T Shoe Mfg. Co., 409 F. 2d 1247 (C. A. 3d Cir. 1969); and the Fifth Circuit reaffirmed its earlier holding in Howell Refining Co., Groendyke Transport, Inc. v. Davis, 406 F. 2d 1158 (1969). We agree with the opinion of Chief Judge Aldrich below that the Excelsior rule involves matters of substance and that it therefore does not fall within any of the Act’s exceptions. See 5 U. S. C. §553 (b) (A). The Board has never utilized the Act’s rule-making procedures. It has been criticized for contravening the Act in this manner. See, e. g., 1 K. Davis, Administrative Law Treatise § 6.13 (Supp. 1965); Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L. J. 729 (1961). The Solicitor General argues that this Court has previously approved “rules” articulated by the Board in the adjudication of particular cases without questioning the propriety of that procedure. He cites Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); NLRB v. A. J. Tower Co., 329 U. S. 324 (1946); NLRB v. Seven-Up Bottling Co., 344 U. S. 344 (1953); and Brooks v. NLRB, 348 U. S. 96 (1954). In none of these cases has this Court ruled upon or sanctioned the exercise of quasi-legislative power—i. e., rule making—without compliance with § 6 of the NLRA and the rule-making provisions of the Administrative Procedure Act. In his Decision and Direction of Election, the Regional Director ordered that “[a)n election eligibility list, containing the names and addresses of all the eligible voters, must be filed with the Regional Director within seven (7) days of the date of this Decision and Direction of Election. The Regional Director shall make the list available" }, { "docid": "858196", "title": "", "text": "20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for, and propriety of, summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158. For cases heretofore placed on the summary calendar, see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165; United States v. One Olivetti Electric 10-Key Adding Machine, etc., 5 Cir., 1969, 406 F.2d 1167; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5 Cir., 1969, 406 F.2d 1170; N.L.R.B. v. The A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176. . Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1398, 18 L.Ed.2d 493; Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.2d 891. See Stovall v. Denno, 1967, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1204, for retro-activity of counsel on appeal. . “We have held that the state has no affirmative duty to appoint counsel unless some responsible state official has knowledge that the defendant is indigent, and that he wishes to appeal.” Worts v. Dutton, 5 Cir., 1968, 395 F.2d 341, 344. . It is undisputed that the sixteen-year-old Petitioner, with a third grade education, was not fully advised of his rights or aware of the consequences of inaction following his conviction and sentencing." }, { "docid": "8065880", "title": "", "text": "for such members, and, if such party shall be declared by the secretary of state to have recorded on the registration books of the counties, as of the eighty-fourth day prior to the first primary in general election years, five per cent of the total registrations of such counties when added together, such committee shall receive, for the purpose of meeting its expenses, all filing fees collected by the secretary of state from its candidates. (2) Not later than thirty days prior to the first primary in even-numbered years the secretary of state shall remit all filing fees or party assessments that may have been collected by him to the respective state executive committee of the parties complying with subsection (1). Party assessments collected by the secretary of state shall be remitted to the appropriate state executive committee, irrespective of other requirements of this section, provided such committee is duly organized under the provisions of § 103.111.” . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158 [Jan. 2, 1969]. See also United States v. One Olivetti Electric 10-Key Adding Machine, 5 Cir., 1969, 406 F.2d 1167 ; United States v. One 6.5 mm. Mannlicher-Garcano Military Rifle, 5 Cir., 1969, 406 F.2d 1170 ; Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165 ; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173 ; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176 ; Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750. The First Circuit has likewise upheld summary disposition without oral argument. See Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516. . A companion case, Wetherington v. Adams, 5 Cir., 1969, 406 F.2d 724, presented the same substantive question as that raised here. In Wetherington, this Court" }, { "docid": "12163336", "title": "", "text": "to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . In order to establish a docket control procedure the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir., 406 F.2d 1158 [January 2, 1969], For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir., 1969, 406 F.2d 1165; United States of America v. One Olivetti Electric 10-Key Adding Machine, 5th Cir. 1969, 406 F.2d 1167; United States of America v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5th Cir. 1969, 406 F.2d 1170; National Labor Relations Board v. Great Atlantic & Pacific Tea Company, Inc., 5th Cir. 1969, 406 F.2d 1173; and Thompson v. White, Warden, 5th Cir. 1969, 406 F.2d 1176." }, { "docid": "12011357", "title": "", "text": "shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165; United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167, and United States of America v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5th Cir. 1969, 406 F.2d 1170." }, { "docid": "23491559", "title": "", "text": "filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . New Rules 17-20, adopted by the Fifth Circuit on December 6, 1968, are set out in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158 [January 2, 1969]. For other cases in which we have employed the summary procedures, see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165 [1969]; United States v. One Olivetti Electric 10-Key Adding Machine, etc., 5 Cir., 1969, 406 F.2d 1167 [1969]; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5 Cir., 1969, 406 F.2d 1170 [1969] and NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173 [1969]; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176 [1969]; Diffenderfer v. Homer, 5 Cir., 1969, 408 F.2d 1344 [1969]. The First Circuit has likewise expressly upheld summary disposition without oral argument. Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516. . The statute provides: Filing application “(b) An application for disability insurance benefits filed before the first month in which, the applicant satisfies the requirements for such benefits * * * shall be deemed a valid application only if the applicant satisfies the requirements for such benefits before the Secretary makes a final decision on the application. If, upon final decision by the Secretary, or decision upon judicial review thereof, such applicant is found to satisfy such requirements, the application shall be deemed to have been filed in such first month. An individual who would have been entitled to a disability insurance benefit for any month) had he filed application therefor before the end of such" }, { "docid": "23491560", "title": "", "text": "and NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173 [1969]; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176 [1969]; Diffenderfer v. Homer, 5 Cir., 1969, 408 F.2d 1344 [1969]. The First Circuit has likewise expressly upheld summary disposition without oral argument. Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516. . The statute provides: Filing application “(b) An application for disability insurance benefits filed before the first month in which, the applicant satisfies the requirements for such benefits * * * shall be deemed a valid application only if the applicant satisfies the requirements for such benefits before the Secretary makes a final decision on the application. If, upon final decision by the Secretary, or decision upon judicial review thereof, such applicant is found to satisfy such requirements, the application shall be deemed to have been filed in such first month. An individual who would have been entitled to a disability insurance benefit for any month) had he filed application therefor before the end of such month shall be entitled to such benefit for such month if he files such application before the end of the 12th month immediately succeeding such month.” (Emphasis added.) . The Rule provides: “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence ; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect * * * or (6) any other reason justifying relief from the operation of the judgment.” F.R.Civ.P. 60(b). . As this Court has stated before, “it should be kept in mind that Rule 60(b) is to be given liberal construction.” In re Casco Chem. Co., 5 Cir., 1964, 335 F.2d 645, 651 n. 18, and cases cited therein. A proceeding under the rule “calls for a delicate adjustment between the desirability of finality and the prevention of injustice.” 335 F.2d at 651. It is the view of this Court that under the present rule, a" }, { "docid": "12038502", "title": "", "text": "in Rules 18 and 19. . That is the date on which the mandate of this Court reversing the order of forfeiture was filed, in the court below. . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158 [January 2, 1969]. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165, and United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167. . “Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent * * *.” 28 U.S.C. § 2465. . Rule 41(a) (2) of the Federal Rules of Civil Procedure provides in pertinent part: “If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”" }, { "docid": "12320038", "title": "", "text": "good-faith effort” to bring appellant before the appropriate state court for trial, provided he has made a sufficient demand within the meaning of Hooey for a trial. Appellant apparently wrote various Georgia officials concerning different aspects of his case, but no copies of these inquiries are in the record. On this incomplete record, we cannot determine whether sufficient demand as contemplated in Hooey has been made. The judgment of the district court is therefore vacated and the case is remanded for a determination of whether appellant made a sufficient demand on Georgia for a trial. Cappetta v. Wainwright, 5 Cir., 406 F.2d 1238 [Feb. 3, 1969]; see also Triplett v. Floyd Circuit Court, 393 U.S. 533, 89 S.Ct. 880, 21 L.Ed.2d 756 (U.S. Feb. 24, 1969); Meeks v. Flourney, 393 U.S. 531, 89 S.Ct. 881, 21 L.Ed.2d 756 (U.S. Feb. 24, 1969); Duncan v. Indiana, 393 U.S. 533, 89 S.Ct. 881, 21 L.Ed.2d 757 (U.S. Feb. 24, 1969); McCrory v. Mississippi, 393 U.S. 532, 89 S.Ct. 881, 21 L.Ed.2d 757 (U.S. Feb. 24, 1969). If the district court determines that sufficient demand was made, then the writ should be granted subject to the right of Georgia to attempt to obtain appellant for trial on the outstanding robbery indictment within a reasonable time. If the court concludes that no demand was made, appellant’s application should be dismissed, without prejudice to appellant to make the appropriate demand on State officials. Nothing said herein precludes appellant from attempting to show at a state trial on these charges that he has been prejudiced by the state’s delay. But we do not in any way suggest how such issue, if raised, should be resolved, leaving that to the state trial judge for determination. Remanded to the district court for further proceedings consistent with this opinion. . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. For a general discussion of the need for and propriety of summary review of certain appeals, sea Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158 [Jan. 2," }, { "docid": "23497399", "title": "", "text": "Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158. For cases heretofore placed on the summary calendar see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165; United States v. One Olivetti Elec. 10-Key Adding Mach., 5 Cir., 1969, 406 F.2d 1167; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, 5 Cir., 1969, 406 F.2d 1170; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176; Diffenderfer v. Homer, 5 Cir., 1969, 408 F.2d 1344; Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750; Byrd v. Smith, 5 Cir., 1969, 407 F.2d 363; Hall v. United States, 5 Cir., 1969, 407 F.2d 1320; Montos v. Smith, 5 Cir., 1969, 406 F.2d 1243; May v. State, 5 Cir., 1969, 409 F.2d 203; Grant v. United States, 5 Cir., 1969, 406 F.2d 1295; Nevels v. McCall, 5 Cir., 1969, 407 F.2d 390; Gamez v. Beto, 5 Cir., 1969, 406 F.2d 1000; Cappetta v. Wainwright, 5 Cir., 1969, 406 F.2d 1238; Jones v. Wainwright, 5 Cir., 1969, 406 F.2d 1241; Boukater v. United States, 5 Cir., 1969, 409 F.2d 537; Williams v. Anderson, 5 Cir., 1969, 407 F.2d 348; Boutwell v. Simpson, 5 Cir., 1969, 408 F.2d 629; NLRB v. Garland Knitting Mills, 5 Cir., 1969, 408 F.2d 672; Nelson v. United States, 5 Cir., 1969, 406 F.2d 1322; Morgan v. Underwood, 5 Cir., 1969, 406 F.2d 1253; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173. The First Circuit has likewise upheld summary disposition without oral argument. See Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516, cert. denied, 1969, 393 U.S. 1065, 89 S.Ct. 720, 21 L.Ed.2d 708. The Ninth Circuit, too, has adopted a rule providing for summary affirmance. See Page v. United States, 9 Cir., 1966, 356 F.2d 337. . See note 1, supra. . The brief filed in this Court on behalf of Floyd contains undertones of this “punishment” argument. It is true, of course, that to enforce lawful judgments it is sometimes necessary to employ" }, { "docid": "12038501", "title": "", "text": "of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERI-TORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . That is the date on which the mandate of this Court reversing the order of forfeiture was filed, in the court below. . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158 [January 2, 1969]. For cases heretofore placed on summary calendar, see Wittner v. United States of America, 5th Cir. 1969, 406 F.2d 1165, and United States of America v. One Olivetti Electric 10-Key Adding Machine, etc., 5th Cir. 1969, 406 F.2d 1167. . “Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent * * *.” 28 U.S.C. § 2465. ." }, { "docid": "23491558", "title": "", "text": "it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure. The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration. After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order. The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure stiall not be tolled or extended by the filing of a motion to dismiss or affirm. RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19. . New Rules 17-20, adopted by the Fifth Circuit on December 6, 1968, are set out in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158 [January 2, 1969]. For other cases in which we have employed the summary procedures, see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165 [1969]; United States v. One Olivetti Electric 10-Key Adding Machine, etc., 5 Cir., 1969, 406 F.2d 1167 [1969]; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, etc. and John J. King, 5 Cir., 1969, 406 F.2d 1170 [1969]" }, { "docid": "23497398", "title": "", "text": "administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee— (1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period * * * ” 5 U.S.C.A. § 5596. . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158. For cases heretofore placed on the summary calendar see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165; United States v. One Olivetti Elec. 10-Key Adding Mach., 5 Cir., 1969, 406 F.2d 1167; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, 5 Cir., 1969, 406 F.2d 1170; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176; Diffenderfer v. Homer, 5 Cir., 1969, 408 F.2d 1344; Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750; Byrd v. Smith, 5 Cir., 1969, 407 F.2d 363; Hall v. United States, 5 Cir., 1969, 407 F.2d 1320; Montos v. Smith, 5 Cir., 1969, 406 F.2d 1243; May v. State, 5 Cir., 1969, 409 F.2d 203; Grant v. United States, 5 Cir., 1969, 406 F.2d 1295; Nevels v. McCall, 5 Cir., 1969, 407 F.2d 390; Gamez v. Beto, 5 Cir., 1969, 406 F.2d 1000; Cappetta v. Wainwright, 5 Cir., 1969, 406 F.2d 1238; Jones v." } ]

[ { "docid": "22355248", "title": "", "text": "in Mills applies with equal force to suits brought for violation of that Rule. This is in accord with the view of the Second and Sixth Circuits in Crane Co. v. Westinghouse Air Brake Co., 419 F.2d at 797 and Britt v. Cyril Bath Co., 417 F.2d at 436. Defendants contend that even if a more liberal interpretation of the statute is appropriate for injunctive relief the plaintiff here failed to request such relief and hence the complaint may not be so construed. Plaintiff’s complaint does not specifically ask for equitable relief; it contains only the general request for “further relief as may be just.” Nonetheless, under Rule 54(e) of the Federal Rules of Civil Procedure, a court may have awarded any relief appropriate under the circumstances. See United States for Use and Benefit of Bergen Point Iron Works v. Maryland Casualty Company, 384 F.2d 303, 304 (2d Cir. 1967); Arley v. United Pacific Insurance Company, 379 F.2d 183, 187 (9th Cir. 1969); Whittaker v. Wall, 226 F.2d 868, 872 (8th Cir. 1955); Fanchon & Marco, Inc. v. Paramount Pictures Inc., 202 F.2d 731, 734, 36 A.L.R.2d 1336 (2d Cir. 1953). Plaintiff’s 10(b) suit would not have been dismissed even though the complaint did not request in-junctive relief, if a cause of action for injunctive relief were in fact inherent in the complaint. Plaintiff has set forth sufficient allegations of misrepresentations, manipulations and nondisclosures of material facts “in connection with the sale or purchase of securities” so as to entitle him to the opportunity to prove a violation of the Act. If the allegations of the complaint are taken in the light strongest for the plaintiff, as we are obligated to do on a motion to dismiss, then it is conceivable that plaintiff’s pleading has alleged such misconduct by the defendants. Of course, nothing in tljis opinion should be construed as suggesting what in fact actually did occur. In consideration of the foregoing, it is our view that plaintiff’s pleadings state a cause of action which may be the basis for an award of counsel fees, and therefore the order" } ]

[ { "docid": "23678546", "title": "", "text": "give sweeteners in the form of options, warrants, or other securities, and were required to keep compensating balances of as much as 20% of the sums borrowed, thus making the effective rate for low risk borrowers as high as 15% per annum. For the first nine months of 1971 Belco had earned 40% on its invested capital. Also, after the action had been brought, Bogue had sold its interest in Belco to Foster-Wheeler Corporation. Defendants’ affidavits supplied more details: Bogue had sold its 600,000 Belco shares to Foster-Wheeler for $1,650,000. Upon the closing on May 1, 1972, the amount owing from Bogue to Belco with 8% interest from the date of each advance was paid, and the 150,000 Belco shares that had collateralized Bogue’s promissory notes were included in the transfer to Foster-Wheeler. It was alleged that the loans to Bogue were in Belco’s best interest and that Belco had derived other benefits from its association with Bogue which must be taken into account in any determination whether Belco had been wronged and, if so, how much. The district judge, 346 F.Supp. 651, granted defendants’ motion for summary judgment and dismissed the complaint. He did this on the basis of the provision in § 28(a) of the Securities Exchange Act which entitles a plaintiff to recover only “actual damages on account of the act complained of” and his conclusion that, under the “federal” rule whereby a defrauded buyer is entitled only to the difference between the amount parted with and the amount received, see Smith v. Bolles, 132 U.S. 125, 10 S.Ct. 39, 33 L.Ed. 279 (1889); Levine v. Seilon, Inc., 439 F.2d 328, 334 (2 Cir. 1971), rather than the “benefit of the bargain” rule applied in such actions by many states, see Prosser, Torts § 110, at 734 (4th ed. 1971), repayment of the loan with interest had eliminated any compensable loss. From this ruling plaintiff appeals. I. Defendants urge that, whether or not we agree with the court’s holding that Belco could not establish any damages, the complaint should have been dismissed because it did not allege" }, { "docid": "23678547", "title": "", "text": "how much. The district judge, 346 F.Supp. 651, granted defendants’ motion for summary judgment and dismissed the complaint. He did this on the basis of the provision in § 28(a) of the Securities Exchange Act which entitles a plaintiff to recover only “actual damages on account of the act complained of” and his conclusion that, under the “federal” rule whereby a defrauded buyer is entitled only to the difference between the amount parted with and the amount received, see Smith v. Bolles, 132 U.S. 125, 10 S.Ct. 39, 33 L.Ed. 279 (1889); Levine v. Seilon, Inc., 439 F.2d 328, 334 (2 Cir. 1971), rather than the “benefit of the bargain” rule applied in such actions by many states, see Prosser, Torts § 110, at 734 (4th ed. 1971), repayment of the loan with interest had eliminated any compensable loss. From this ruling plaintiff appeals. I. Defendants urge that, whether or not we agree with the court’s holding that Belco could not establish any damages, the complaint should have been dismissed because it did not allege fraud in connection with the purchase .or sale of a “security.” In analyzing this argument it will be convenient to treat the ease in the first instance as if Bogue had issued demand notes collateralized with Belco stock from the outset and then consider whether a different result is required because until July 1, 1971, Bogue’s indebtedness was evidenced only on open account. The Securities Act of 1933 and the Securities Exchange Act of 1934 differ in their method of handling short-term commercial paper. Under the 1933 Act, while § 2(1) provides that any note is a “security,” § 3(a)(3) exempts from the registration and prospectus requirements “[a]ny note, draft, bill of exchange, or banker’s acceptance which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity ^at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” However, § 17, the general anti-fraud" }, { "docid": "23082621", "title": "", "text": "Civ.Proc. § 425.10(b) as set out in statutes 1971, eh. 244 § 23. But the law changed in 1974. As amended, California law now expressly prohibits the plaintiff in a personal injury case from stating how much money he demands: § 425.10 Statement of facts; demand for judgment A complaint or cross-complaint shall contain both of the following: (a).... (b) A demand for judgment for the relief to which the pleader claims he is entitled. If the recovery of money or damages be demanded, the amount thereof shall be stated, unless the action is brought in the superior court to recover actual or punitive damages for personal injury or wrongful death, in which case the amount thereof shall not be stated. CaLCode Civ.Proe. § 425.10(b). This amendment means that the mechanical system of St. Paul Mercury, for determining whether the amount in controversy exceeds $50,000 no longer works in California personal injury and wrongful death cases. The defendant’s claim that the amount in controversy exceeds $50,000 does not enjoy the St. Paul Mercury presumption of accuracy that the plaintiffs does. The reason is that a plaintiffs ad damnum exceeding $50,-000 causes him to lose his selected forum, but defendant’s claim supports moving the case to his preferred forum. In Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir.1992), we held that a summary judgment obtained after removal had to be vacated because the amount in controversy requirement was not satisfied. There the Nevada statute prohibited a plaintiff from stating an amount in excess of $50,000 in the ad damnum clause. In Gaus, the plaintiff said in response to our order to show cause that damages sought were “in the millions of dollars,” but the defendant who removed the case said that plaintiffs allegation “may be a procedural error” and apparently did not agree with it. Id. at 566. The defendant offered “no facts whatsoever” to support its claim that the matter in controversy exceeded $50,000. Id. at 567. We understand Gaus to mean that where the plaintiff does not claim damages in excess of $50,000 and the defendant offers “no" }, { "docid": "20152917", "title": "", "text": "motion, plaintiff Samuel Shochat submitted an affidavit unequivocally admitting that “[f]rom 1977 until some time late in 1983 Weisz was our accountant” (Shochat Aff’t 11 5 [emphasis supplied]). In sum, no evidence whatsoever was offered by the plaintiffs to suggest that the relationship lasted beyond the calendar year 1983, other than the conclusory statements contained in the complaint that the defendant was advised of the IRS disallowance sometime in 1984. This is insufficient to create a genuine issue of material fact, especially since the plaintiffs’ own Complaint and affidavits indicate otherwise. Accordingly, based upon the foregoing, the plaintiffs’ claim of professional accounting malpractice based on the alleged negligence of the defendant is time barred as a matter of law under CPLR 214(6) and count IV is dismissed. 2. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: Because of the disposition set forth above, the Court need not make a determination on the defendant’s motion for summary judgment, since the Court finds that as a matter of pleading, the plaintiffs have failed to state a claim for relief under either the federal securities laws or the common law of New York. Therefore, the defendant’s motion for summary judgment is denied, except as to count IV, which the Court grants. 3. PLAINTIFFS’ MOTION TO AMEND: The plaintiffs move pursuant to Fed.R.Civ.P. 15(a), for leave to amend the complaint to withdraw count III of the complaint and also to increase the amount alleged in the ad damnum clause. Pursuant to Fed.R.Civ.P. 15(a), “leave shall be freely given when justice so requires” (emphasis supplied). Only “ ‘undue delay, bad faith, futility of amendment, and perhaps, most important, the resulting prejudice to the opposing party’ ” should provide reason for denial of such a motion (Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 653 n. 6 [2d Cir.1987], quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 [2d Cir.1981]; see also State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409 [2d Cir.1990], quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 [1962]). However, where" }, { "docid": "23678563", "title": "", "text": "respect to plaintiff’s fifth theory of damages, it would not suffice to show that Belco lost the use of the funds loaned to Bogue; plaintiff must demonstrate that but for defendants’ fraud, Belco would have chosen to invest the monies in its own operations; and that Belco could have used the funds more profitably in its own business. While we thus do not take a very bright view of plaintiff’s prospects on his fourth and fifth theories, the judge should have allowed him to\" try. III. Plaintiff’s request that we enter summary judgment on the issue of liability is completely without merit; defendants have asserted numerous defenses to the claim that Bogue misused Beleo, which raise triable issues of fact. Equally baseless is plaintiff’s request for an immediate award of attorneys’ fees on the ground that it was the institution of this action that caused the note to be paid. So far as we can see, what caused the payment was Bogue’s sale of its Beleo stock to Foster-Wheeler, which provided both the need and the means. The order granting summary judgment to the defendants and dismissing the complaint is reversed and the cause remanded for further proceedings consistent with this opinion. . A copy of the promissory note, annexed as an exhibit to ' plaintiff’s affidavit in support of his summary judgment motion, reveals that the rate of interest was 8%. . In August 1971, the underwriter proposed an offering of 150,000 units of Belco securities, each unit being composed of two shares of Belco common stock and one warrant exercisable into Belco common stock. Belco\" and Bogue were each to sell 75,000 units, and the unit price was not to exceed $11. The body of the complaint contains-a claim that the proceeds of the offering would have been $1,650,-000, yielding Belco at least $800,000, but the ad damnum speaks in terms of $1,500,-000 “which would have been the proceeds of the proposed offering.” Additional correspondence annexed as exhibits to appellant’s affidavit in support of his motion for summary judgment indicate that modifications in the number of units to" }, { "docid": "23678545", "title": "", "text": "7}4% and the proceeds of the aborted underwriting, various forms of injunctive relief, and orders awarding attorneys’ fees, costs and such other relief as would be just and proper. After answer, plaintiff moved for summary judgment. Defendants countered with a motion and supporting papers which asked that the complaint be dismissed for want of subject matter jurisdiction, that they be granted summary judgment, or that, in any event, plaintiff’s motion for summary judgment be denied. Plaintiff’s moving affidavit added several new matters of importance: Belco’s own corporate resolutions recited that the advances had been made “for the corporate purposes of Bogue.” Belco itself had suffered losses in 1969 and 1970, with a net decrease of working capital of $629,828 in the latter year, and thus was in no position to loan substantial sums to its parent. Plaintiff alleged that during 1970 “some of the most successful corporations in America were paying 10% to 12% per annum to borrow money from banks and other sources of financing because of ‘tight money’ conditions,” were often required to give sweeteners in the form of options, warrants, or other securities, and were required to keep compensating balances of as much as 20% of the sums borrowed, thus making the effective rate for low risk borrowers as high as 15% per annum. For the first nine months of 1971 Belco had earned 40% on its invested capital. Also, after the action had been brought, Bogue had sold its interest in Belco to Foster-Wheeler Corporation. Defendants’ affidavits supplied more details: Bogue had sold its 600,000 Belco shares to Foster-Wheeler for $1,650,000. Upon the closing on May 1, 1972, the amount owing from Bogue to Belco with 8% interest from the date of each advance was paid, and the 150,000 Belco shares that had collateralized Bogue’s promissory notes were included in the transfer to Foster-Wheeler. It was alleged that the loans to Bogue were in Belco’s best interest and that Belco had derived other benefits from its association with Bogue which must be taken into account in any determination whether Belco had been wronged and, if so," }, { "docid": "23678552", "title": "", "text": "Regulation 796 (2d ed. 1961). Such a ruling, by an agency charged with the administration of a statute, while not conclusive, is entitled to substantial weight. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). We thus agree with the decision of the Seventh Circuit in Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972), that the mere fact that a note has a maturity of less than nine months does not take the case out of Rule 10b-5, unless the note fits the general notion of “commercial paper” reflected in the SEC Release. See also Anderson v. Francis I. duPont & Co., 291 F.Supp. 705 (D.Minn.1968) (short-term notes); cf. United States v. Hill, 298 F.Supp. 1221, 1226-1227 (D.Conn.1969) (high risk 6-month notes held not exempt from the registration requirements of the Securities Act of 1933); Bromberg, Securities Law: Fraud SEC Rule 10b-5 § 4.6(317) (1969). We see nothing in SEC v. Fifth Avenue Coach Lines, Inc., 435 F.2d 510, 517 (2 Cir. 1970), which would lead to a contrary conclusion, though the district court opinion contains dicta with which we would not agree, see 289 F. Supp. 3, 38 (S.D.N.Y.1968). It does not follow, however, that every transaction within the introductory clause of § 10, which involves promissory notes, whether of less or more than nine months maturity, is within Rule 10b-5. The Act is for the protection of investors, and its provisions must be read accordingly. See Movielab, Inc. v. Berkey Photo, Inc., 452 F.2d 662 (2 Cir. 1971). But we see no reason to doubt that Belco stood in the position of an investor, although perhaps an involuntary one, with respect to Bogue. We thus hold that, if at the outset the transaction had taken the form of Belco’s buying Bogue’s demand note, Rule 10b-5 would apply. However, we are unable to find anything in the definition of security in the Securities Exchange Act that would cover an advance on open account. In this respect the omission," }, { "docid": "23678565", "title": "", "text": "be sold in the proposed offering were considered. . Plaintiff is not, of course, limited to the ad damnum stated in the complaint. See, e. g., United States ex rel. Bergen Point Iron Works v. Maryland Casualty Co., 384 F.2d 303 (2 Cir. 1967); Kahan v. Rosenstiel, 424 F.2d 161, 174 (3 Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). See generally 6 Moore, Federal Practice ¶ 54.62 (2d ed. 1972). . Both the complaint and the moving affidavit contain many allegations of alleged falsities and nondisclosures in Belco’s reports to the SEC and to stockholders. The pertinence of all this in a derivative stockholder’s action on behalf of Belco escapes us, unless the plaintiff is attempting to provide thereby proof of an intent to defraud. . Defendants also disputed plaintiff’s claim that interest had not been accrued on the open-account advance; - they claimed this had been charged on Bogue’s books at the rate of 8%. . In explaining the House bill’s § 3(3) exemption, which was ultimately enacted into law without amendment, the House Committee report states that “ [paragraph (3) exempts short-term paper of the type available for discount at a Federal Reserve bank and of a type which rarely is bought by private investors.” H.R.Rep. No. 85, 73d Cong., 1st Sess. 15 (1933). Since this statement was quoted and relied upon by the SEC in its release, Professor Loss’ criticism of the Commission’s reliance on S.Rep. No. 47, 73d Cong., 1st Sess. 3-4 (1933), for failing to mention that the Senate bill, the focus of the report, had provided in § 2(a) that the paper must not be “offered or intended to be offered for sale to the public,” see 4 Loss, Securities Regulation 2590 (Supp. 1969), though technically correct, does not seem to undermine the validity of the SEC’s position. . The Senate Report on the Securities Exchange Act stated that the definition of security was intended to be substantially the same as that contained in the Securities Act, S.Rep. No. 792, 73d Cong., 2d Sess. 14 (1934), quoted in" }, { "docid": "23678543", "title": "", "text": "FRIENDLY, Chief Judge: Appellant Zeller, a stockholder of Belco Pollution Control Corporation (Belco), a Delaware corporation having its principal offices in New Jersey, brought this derivative action in the District Court for the Southern District of New York against Bogue Electric Manufacturing Corporation (Bogue), a New Jersey corporation, four individuals who were directors of both Belco and.Bogue, and Belco’s accountants. Federal jurisdiction was predicated on § 27 of the Securities Exchange Act of 1934, § 22 of the Securities Act of 1933, and pendent jurisdiction. The principal allegations of the complaint were as follows: In 1968 Bogue caused Belco to be incorporated and later that year to make a public offering of 200,000 of its 810,000 common shares, with 600,000 unregistered shares being retained by Bogue, which exercised effective control over Belco. During 1969 Bogue suffered from accelerating operating losses and a deteriorating working capital position. In contrast, Belco, as a result of receiving approximately $1,000,000 from the public offering and operating earnings, was accumulating cash which was necessary for its growing business. During 1970 the four individual defendants caused Belco to make a series of open-account loans to Bogue for which “no interest was required to be paid.” At the year end the loans totaled $202,130, and by June 30, 1971 they had increased to $315,310. On July Y, 1971, the open account indebtedness was replaced by a demand interest bearing promissory note, collateralized by 150,000 shares of Belco stock owned by Bogue and to be held by a trustee. Subsequent disclosure of the loan by Belco to Bogue was claimed to have aborted a further public offering of Belco shares which would have yielded Belco at least $800,000. The conduct of Bogue and the individual defendants was alleged to have violated § 10(b) and Rule 10b-5 of the Securities Exchange Act, § 17(a) of the Securities Act, and the securities laws of New York and New Jersey, where the improper acts were claimed to have been done. The complaint sought judgment for the amount of all loans by Belco to Bogue with interest at the legal rate of" }, { "docid": "23678554", "title": "", "text": "in the 1934 definition, of the words “evidence of indebtedness” contained in the definition in § 2(1) of the 1933 Act would seem to have a significance which, for good reason, the Supreme Court found lacking on the facts before it in Tcherepnin v. Knight, 389 U.S. 332, 344, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). Arguably this would mean that damages must be limited to those accruing after July 1, 1971. However, such a conclusion would fail to take suitable account of plaintiff’s claim that Bogue’s use of its control over Belco to compel a loan which was in Bogue’s interest but not in Beleo’s violated applicable state law. If the issu anee of the note created a claim under Rule 10b-5, any damages suffered earlier can be awarded in the exercise of pendent jurisdiction. II. Analysis of plaintiff’s claims reveals five different bases for his contention that payment of the note with 8% interest may not have adequately compensated Belco: 1) Belco could have obtained more than 8% interest, at least from a borrower in what is alleged to have been the precarious financial condition of Bogue, during the period of tight money conditions that prevailed during part or all of the time when Bogue’s debt was outstanding ; 2) Bogue would have had to pay more than 8% to obtain funds during part or all of the period; 3) The loan enabled Bogue to profit by selling the 150,000 Belco shares pledged as collateral for $412,500 (a quarter of the total price paid by Foster-Wheeler), since otherwise Bogue would have been obliged to sell these shares 10 months earlier under distress circumstances and before Belco had experienced a highly profitable period; 4) The intercompany loan deprived Belco of the benefits of a new underwriting in late 1971 from which it would have realized at least $800,000, see fn.2, supra; and 5) Belco could have earned more than 8% by using the loaned funds in its own business. The parties have argued the case as presenting the question whether the principle of Janigan v. Taylor, 344 F.2d 781," }, { "docid": "23678544", "title": "", "text": "the four individual defendants caused Belco to make a series of open-account loans to Bogue for which “no interest was required to be paid.” At the year end the loans totaled $202,130, and by June 30, 1971 they had increased to $315,310. On July Y, 1971, the open account indebtedness was replaced by a demand interest bearing promissory note, collateralized by 150,000 shares of Belco stock owned by Bogue and to be held by a trustee. Subsequent disclosure of the loan by Belco to Bogue was claimed to have aborted a further public offering of Belco shares which would have yielded Belco at least $800,000. The conduct of Bogue and the individual defendants was alleged to have violated § 10(b) and Rule 10b-5 of the Securities Exchange Act, § 17(a) of the Securities Act, and the securities laws of New York and New Jersey, where the improper acts were claimed to have been done. The complaint sought judgment for the amount of all loans by Belco to Bogue with interest at the legal rate of 7}4% and the proceeds of the aborted underwriting, various forms of injunctive relief, and orders awarding attorneys’ fees, costs and such other relief as would be just and proper. After answer, plaintiff moved for summary judgment. Defendants countered with a motion and supporting papers which asked that the complaint be dismissed for want of subject matter jurisdiction, that they be granted summary judgment, or that, in any event, plaintiff’s motion for summary judgment be denied. Plaintiff’s moving affidavit added several new matters of importance: Belco’s own corporate resolutions recited that the advances had been made “for the corporate purposes of Bogue.” Belco itself had suffered losses in 1969 and 1970, with a net decrease of working capital of $629,828 in the latter year, and thus was in no position to loan substantial sums to its parent. Plaintiff alleged that during 1970 “some of the most successful corporations in America were paying 10% to 12% per annum to borrow money from banks and other sources of financing because of ‘tight money’ conditions,” were often required to" }, { "docid": "23531656", "title": "", "text": "6 Wright & Miller, Federal Practice and Procedure § 1487 (1971 ed.). Here, the proposed amendment amplifies, with the particularity requisite under Rule 9(b) of the Federal Rules, the allegations of fraud contained in paragraph 14 of plaintiffs’ original complaint, and constitutes an alternative theory for recovery to those previously alleged. See Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. 227; see generally, 3 J. Moore, Federal Practice f 15.08[3] (2d ed. 1974). Nor is this a case where the facts on which the proposed amendment is based were known to the moving party at an earlier date, and the motion to amend was delayed for a substantial period of time without excuse. Cf. Feldman v. Litton, supra, 64 F.R.D. at 542-3. Thus, plaintiffs contend that their claims of fraud are based in substantial part on information only recently obtainable during the course of pretrial discovery. While it is true that many documents relied on by AEP were in their hands at least as of October, 1974 — over one year before initiation of the motion to amend — this delay is not inordinate or inexcusable, particularly in view of the extensive and continuing discovery being carried on to date, which plaintiffs claim tie together and buttress their claims of fraud. This factor lends additional support for granting leave to amend. See, e. g., Glazer Steel Corp. v. Yawata Iron & Steel Co., Ltd., 56 F.R.D. 75, 78 (S.D.N.Y.1972). Finally, there is little prejudice to the defendant since the factual showing necessary to support plaintiffs’ claims of fraud will arise out of the same transactions and occurrences which are already the subject matter of this lawsuit — namely, the sale, design, manufacture and repair of Mitchell Unit I. See, e. g., Lewis v. Marine Midland Grace Trust Co. of New York, 63 F.R.D. 39, 51 (S.D.N.Y.1973). Accordingly, plaintiffs’ motion to amend their complaint to add a claim for fraudulent inducement and misrepresentation is hereby granted. Plaintiffs also seek leave to amend their reply to Westinghouse’s counterclaim by adding a statute of limitations defense. Plaintiffs’ motion is granted. While" }, { "docid": "20152918", "title": "", "text": "either the federal securities laws or the common law of New York. Therefore, the defendant’s motion for summary judgment is denied, except as to count IV, which the Court grants. 3. PLAINTIFFS’ MOTION TO AMEND: The plaintiffs move pursuant to Fed.R.Civ.P. 15(a), for leave to amend the complaint to withdraw count III of the complaint and also to increase the amount alleged in the ad damnum clause. Pursuant to Fed.R.Civ.P. 15(a), “leave shall be freely given when justice so requires” (emphasis supplied). Only “ ‘undue delay, bad faith, futility of amendment, and perhaps, most important, the resulting prejudice to the opposing party’ ” should provide reason for denial of such a motion (Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 653 n. 6 [2d Cir.1987], quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 [2d Cir.1981]; see also State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409 [2d Cir.1990], quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 [1962]). However, where there is simply “no merit in the proposed amendments, leave to amend should be denied” (Health-Chem Corp. v. Baker, 915 F.2d 805 [2d Cir.1990]). Of course, “refusal to grant leave must be based on a valid ground” (Ronzani v. Sanofi S.A., 899 F.2d 195, 198 [2d Cir.1990], citing Foman v. Davis, su-yra). In determining whether a proposed amendment is frivolous on its face, the Court applies the same test that is used to assess the legal sufficiency of a pleading under Fed.R.Civ.P. 12(b)(6) (see 3 Moore’s Federal Practice ¶| 15.08[4], at pp. 15-80 to 15-82 [2d ed. 1990]), by assuming the truth of the allegations contained in the pleading. As stated above, the plaintiffs’ motion for leave to withdraw count III alleging violation of the Martin Act, is granted. As to the request for leave to amend the complaint to increase the amount of the ad damnum clause, “[s]uch amendments are to be liberally permitted unless there is prejudice to a party” (Greensyon v. Super-markets General Corp., 744 F.Supp. 77, 78 [S.D.N.Y.1990] [citations omitted]; cf." }, { "docid": "23678553", "title": "", "text": "Lines, Inc., 435 F.2d 510, 517 (2 Cir. 1970), which would lead to a contrary conclusion, though the district court opinion contains dicta with which we would not agree, see 289 F. Supp. 3, 38 (S.D.N.Y.1968). It does not follow, however, that every transaction within the introductory clause of § 10, which involves promissory notes, whether of less or more than nine months maturity, is within Rule 10b-5. The Act is for the protection of investors, and its provisions must be read accordingly. See Movielab, Inc. v. Berkey Photo, Inc., 452 F.2d 662 (2 Cir. 1971). But we see no reason to doubt that Belco stood in the position of an investor, although perhaps an involuntary one, with respect to Bogue. We thus hold that, if at the outset the transaction had taken the form of Belco’s buying Bogue’s demand note, Rule 10b-5 would apply. However, we are unable to find anything in the definition of security in the Securities Exchange Act that would cover an advance on open account. In this respect the omission, in the 1934 definition, of the words “evidence of indebtedness” contained in the definition in § 2(1) of the 1933 Act would seem to have a significance which, for good reason, the Supreme Court found lacking on the facts before it in Tcherepnin v. Knight, 389 U.S. 332, 344, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). Arguably this would mean that damages must be limited to those accruing after July 1, 1971. However, such a conclusion would fail to take suitable account of plaintiff’s claim that Bogue’s use of its control over Belco to compel a loan which was in Bogue’s interest but not in Beleo’s violated applicable state law. If the issu anee of the note created a claim under Rule 10b-5, any damages suffered earlier can be awarded in the exercise of pendent jurisdiction. II. Analysis of plaintiff’s claims reveals five different bases for his contention that payment of the note with 8% interest may not have adequately compensated Belco: 1) Belco could have obtained more than 8% interest, at least from a" }, { "docid": "8201440", "title": "", "text": "OPINION GORBEY, District Judge. On November 16, 1972, the plaintiff Howard L. Jenkins filed pro se, an 11 page complaint with 16 exhibits, on behalf of all stockholders of Lavender House, Inc., against The Fidelity Bank (the Bank), and each of its officers and directors, individually. The complaint alleged various acts of misconduct by the defendants directed toward Lavender House, Inc. Following a motion by the defendants, this court ordered the plaintiff to submit an amended complaint in compliance with the Federal Rules of Civil Procedure. The amended complaint which adds Lavender House, Inc. as a plaintiff (corporate plaintiff), and the law firm of Morgan, Lewis and Bockius; Gabriel F. Nagy, Esquire (Nagy); and Southeastern Pennsylvania Development Fund (the Fund), as defendants, sets forth some 15 counts in 129 numbered paragraphs. This complaint charges that the defendants participated in the preparation of an offering circular which contained several omissions and misrepresentations, made improper disbursements from the proceeds of the offering and performed other acts of misconduct. The amended complaint with its 17 exhibits was filed on a timely basis. Before this court are motions submitted on behalf of each defendant, pursuant to Fed.R.Civ.P. 12 to dismiss the complaint. We will examine each count and the objections to its seriatim. COUNT 1 Count 1 charges that Gabriel F. Nagy, Esquire, participated in the preparation of a misleading offering circular, in connection with the public offering of the stock of Lavender House, Inc., in violation of the Securities Act of 1933. Specifically, it charges the offering circular failed to state that the net proceeds of the company’s public stock offering would be assigned to the Bank until its loan was fully paid. Defendant Nagy contends that the complaint fails to state a claim upon which relief can be granted, because the securities in question were exempt from registration under Section 3 of the Act (15 U.S.C. § 77c). In an action by a buyer of unregistered securities, it is well established that the defendant has the burden of proving exemption from registration requirements. See SEC v. Ralston Purina Co., 346 U.S. 119," }, { "docid": "23678564", "title": "", "text": "the means. The order granting summary judgment to the defendants and dismissing the complaint is reversed and the cause remanded for further proceedings consistent with this opinion. . A copy of the promissory note, annexed as an exhibit to ' plaintiff’s affidavit in support of his summary judgment motion, reveals that the rate of interest was 8%. . In August 1971, the underwriter proposed an offering of 150,000 units of Belco securities, each unit being composed of two shares of Belco common stock and one warrant exercisable into Belco common stock. Belco\" and Bogue were each to sell 75,000 units, and the unit price was not to exceed $11. The body of the complaint contains-a claim that the proceeds of the offering would have been $1,650,-000, yielding Belco at least $800,000, but the ad damnum speaks in terms of $1,500,-000 “which would have been the proceeds of the proposed offering.” Additional correspondence annexed as exhibits to appellant’s affidavit in support of his motion for summary judgment indicate that modifications in the number of units to be sold in the proposed offering were considered. . Plaintiff is not, of course, limited to the ad damnum stated in the complaint. See, e. g., United States ex rel. Bergen Point Iron Works v. Maryland Casualty Co., 384 F.2d 303 (2 Cir. 1967); Kahan v. Rosenstiel, 424 F.2d 161, 174 (3 Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). See generally 6 Moore, Federal Practice ¶ 54.62 (2d ed. 1972). . Both the complaint and the moving affidavit contain many allegations of alleged falsities and nondisclosures in Belco’s reports to the SEC and to stockholders. The pertinence of all this in a derivative stockholder’s action on behalf of Belco escapes us, unless the plaintiff is attempting to provide thereby proof of an intent to defraud. . Defendants also disputed plaintiff’s claim that interest had not been accrued on the open-account advance; - they claimed this had been charged on Bogue’s books at the rate of 8%. . In explaining the House bill’s § 3(3) exemption, which was ultimately enacted" }, { "docid": "23678561", "title": "", "text": "applicable state law) permits the recovery of consequential damages for fraud. General principles of tort law allow such damages in such actions, see Restatement of Torts 2d, Tent. Draft No. 11, § 549(1)(b) and comment d. (1965); McCormick, Damages § 122, at 459-60 (1935); Prosser, Torts, supra, § 110, at 735 and eases there cited. We perceive no sound reason for refusing to apply this principle under the Securities Exchange Act. However, we do not wish to arouse unfounded expectations in Zeller or in other potential 10b-5 plaintiffs. A plaintiff seeking consequential damages for fraud, at common law or under federal securities legislation, must establish the causal nexus with a good deal of certainty. Since consequential damages are an addition to or in lieu of what would ordinarily constitute a fair recovery, there is no room here for applying the liberal principles of Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931); and Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S. Ct. 574, 90 L.Ed. 652 (1946), where some liberality is required to enable an injured plaintiff to recover anything. Thus, taking the claim about the aborted underwriting, plaintiff will not carry his burden merely by showing that the loan to Bogue was a factor of concern to the proposed underwriter. He must also show that Bogue was unwilling to meet the underwriter’s conditions concerning intercompany borrowings; that but for this the underwriter would have gone forward; that the underwriting would have been accomplished; and that Belco could have used the proceeds in a manner that would have increased per share earnings. And once all this has been demonstrated, Belco should only be permitted to recover as consequential damages what it lost by not being able to make the -public offering as originally scheduled; once the loan was repaid, the shares which were to have been offered could presumably have been sold to the public. Similarly, with" }, { "docid": "23678555", "title": "", "text": "borrower in what is alleged to have been the precarious financial condition of Bogue, during the period of tight money conditions that prevailed during part or all of the time when Bogue’s debt was outstanding ; 2) Bogue would have had to pay more than 8% to obtain funds during part or all of the period; 3) The loan enabled Bogue to profit by selling the 150,000 Belco shares pledged as collateral for $412,500 (a quarter of the total price paid by Foster-Wheeler), since otherwise Bogue would have been obliged to sell these shares 10 months earlier under distress circumstances and before Belco had experienced a highly profitable period; 4) The intercompany loan deprived Belco of the benefits of a new underwriting in late 1971 from which it would have realized at least $800,000, see fn.2, supra; and 5) Belco could have earned more than 8% by using the loaned funds in its own business. The parties have argued the case as presenting the question whether the principle of Janigan v. Taylor, 344 F.2d 781, 786-787 (1 Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965); Myzel v. Fields, 386 F.2d 718, 748-749 (8 Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968); and now Affiliated Ute Citizens v. United States, 406 U.S. 128, 154-155, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), whereby, in addition to the usual measure of damages, defrauders will be forced to disgorge windfall profits, applies when the defrauded party is a buyer as well as when he is a seller. Although most of plaintiff’s theories do not involve that issue and the ones that do may fail on different grounds, we think it desirable to state our views since the question is fairly raised. We do not consider the cited cases, or our own decision in Levine v. Seilon, Inc., supra, 439 F.2d at 334, as having established any such bright line between defrauded sellers and defrauded buyers as defendants urge. The actual holdings in Janigan and Ute were that defrauded sellers were entitled not only" }, { "docid": "23678562", "title": "", "text": "S.Ct. 248, 75 L.Ed. 544 (1931); and Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S. Ct. 574, 90 L.Ed. 652 (1946), where some liberality is required to enable an injured plaintiff to recover anything. Thus, taking the claim about the aborted underwriting, plaintiff will not carry his burden merely by showing that the loan to Bogue was a factor of concern to the proposed underwriter. He must also show that Bogue was unwilling to meet the underwriter’s conditions concerning intercompany borrowings; that but for this the underwriter would have gone forward; that the underwriting would have been accomplished; and that Belco could have used the proceeds in a manner that would have increased per share earnings. And once all this has been demonstrated, Belco should only be permitted to recover as consequential damages what it lost by not being able to make the -public offering as originally scheduled; once the loan was repaid, the shares which were to have been offered could presumably have been sold to the public. Similarly, with respect to plaintiff’s fifth theory of damages, it would not suffice to show that Belco lost the use of the funds loaned to Bogue; plaintiff must demonstrate that but for defendants’ fraud, Belco would have chosen to invest the monies in its own operations; and that Belco could have used the funds more profitably in its own business. While we thus do not take a very bright view of plaintiff’s prospects on his fourth and fifth theories, the judge should have allowed him to\" try. III. Plaintiff’s request that we enter summary judgment on the issue of liability is completely without merit; defendants have asserted numerous defenses to the claim that Bogue misused Beleo, which raise triable issues of fact. Equally baseless is plaintiff’s request for an immediate award of attorneys’ fees on the ground that it was the institution of this action that caused the note to be paid. So far as we can see, what caused the payment was Bogue’s sale of its Beleo stock to Foster-Wheeler, which provided both the need and" }, { "docid": "20152919", "title": "", "text": "there is simply “no merit in the proposed amendments, leave to amend should be denied” (Health-Chem Corp. v. Baker, 915 F.2d 805 [2d Cir.1990]). Of course, “refusal to grant leave must be based on a valid ground” (Ronzani v. Sanofi S.A., 899 F.2d 195, 198 [2d Cir.1990], citing Foman v. Davis, su-yra). In determining whether a proposed amendment is frivolous on its face, the Court applies the same test that is used to assess the legal sufficiency of a pleading under Fed.R.Civ.P. 12(b)(6) (see 3 Moore’s Federal Practice ¶| 15.08[4], at pp. 15-80 to 15-82 [2d ed. 1990]), by assuming the truth of the allegations contained in the pleading. As stated above, the plaintiffs’ motion for leave to withdraw count III alleging violation of the Martin Act, is granted. As to the request for leave to amend the complaint to increase the amount of the ad damnum clause, “[s]uch amendments are to be liberally permitted unless there is prejudice to a party” (Greensyon v. Super-markets General Corp., 744 F.Supp. 77, 78 [S.D.N.Y.1990] [citations omitted]; cf. Crown Coat Front Co. v. United States, 395 F.2d 160, 164 [2d Cir.] [upholding district court’s denial of leave to amend to increase amount of damages], cert. denied, 393 U.S. 853, 89 S.Ct. 123, 21 L.Ed.2d 122 [1968]). Not having demonstrated any possible prejudice, the plaintiff’s motion for leave to increase the amount alleged in the ad damnum clause is granted. IV. CONCLUSION Based upon the foregoing, the motion of the defendant for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) as to counts I and II, is granted, with leave to replead (see Ronzani v. Sanofi S.A., supra, 899 F.2d at p. 198 [2d Cir.1990] [quoting 2A Moore & Lucas, Moore's Federal Practice ¶ 12.14 at 12-99 [2d ed. 1989] [“[w]hen a motion to dismiss is granted, ‘the usual practice is to grant leave to amend the complaint’ ... [and] refusal to grant leave must be based on a valid ground”]). The motion of the defendant for summary judgment on counts III and IV, is granted. Accordingly, counts III and IV are dismissed as" } ]

[ { "docid": "14639486", "title": "", "text": "remedy is sought for the same injury. (American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702.) Morris’s claims against both Vitek and United Pacific spring from a single source — the wrongful attachment of Morris’s property — for which a single recovery could be obtained no matter how many defendants shared liability. The two claims are not separate and independent of one another. (Cf. Gray v. New Mexico Military Institute (10th Cir. 1957) 249 F.2d 28.) The second ground for the District Court’s decision that removal jurisdiction existed was that Vitek could be ignored because he was an unserved, nonresident defendant. The ruling is contrary to Pullman Co. v. Jenkins (1939) 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334. Pullman states two rules: (1) A nonresident defendant cannot remove a “nonseparable” action if the citizenship of any codefendant, joined by the plaintiff in good faith, destroys complete diversity, regardless of service or nonservice upon the codefendant; (2) a nonresident defendant can remove a “nonseparable” action without joining in his petition unserved codefendants whose citizenship would not destroy diversity. Whenever federal jurisdiction in a removal case depends upon complete diversity, the existence of diversity is determined from the fact of citizenship of the parties named and not from the fact of service. The Pullman rule does not adversely affect a defendant’s right to remove if there are later developments in the case which create diversity initially absent, as, for example, the dismissal of a party whose presence destroyed diversity. (28 U.S.C. § 1446(b); Grigg v. Southern Pacific Co. (9th Cir. 1957) 246 F.2d 613; Southern Pacific Co. v. Haight (9th Cir. 1942) 126 F.2d 900; 1A J. Moore, Federal Practice, supra note 1, at 1238-40.) The case is remanded to the District Court with directions to vacate the judgment entered and, if no further steps are taken by any party to affect its jurisdiction, to remand the case to the Nevada courts. Each party shall bear its own costs on appeal. . Occasional holdings that unserved codefendants can be ignored in deciding" } ]

[ { "docid": "3220682", "title": "", "text": "that the federal district court dismiss all defendants that had not filed answers, arguing that these defendants were in default and should be dismissed. The district court denied Waugh’s motion to dismiss the other defendants and remanded the case to Missouri state courts due to a lack of complete diversity. II. We first note that Waugh’s motion to remove was apparently defective from the outset due to his failure to join all defendants as required by our court’s interpretation of 28 U.S.C. § 1446. See Marano Enters. of Kansas v. Z-Teca Rests., L.P., 254 F.3d 753, 755 n. 2 (8th Cir.2001) (“Under the rule of unanimity, ordinarily all defendants must join in a notice of removal or the case will be remanded.”). Although Waugh’s failure to join the other defendants appears to be dispositive, we nonetheless consider the merits of his argument that, because Horton did not bring a motion to remand within thirty days of Waugh’s motion to remove, he waived his right to have the case remanded to state court. We must first determine whether our court has jurisdiction to review the district court’s remand order. Under the so-called “forum defendant rule,” a non-federal question case “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). Congress has limited the power of appellate courts to review remands by district courts, stating that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” 28 U.S.C. § 1447(d). In Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), the Supreme Court clarified that “only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” Section 1447(c) provides in relevant part: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If" }, { "docid": "17648424", "title": "", "text": "General Motors particularly relies on section 1441(b), which provides: (b) * * * Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. [28 U.S.C. § 1441(b) (emphasis supplied).] General Motors contends that under the “joined and served” language of section 1441(b), a defendant seeking removal need only establish that those defendants who have been properly joined and served are not citizens of the state in which the action is brought. Thus, the presence of the unserved Jane Doe defendant in this case does not prevent removal. We reject this argument. Despite the “joined and served” provision of section 1441(b), the prevailing view is that the mere failure tó serve a defendant who would defeat diversity jurisdiction does not permit a court to ignore that defendant in determining the propriety of removal. 1A Moore’s Federal Practice ¶ 0.168, at 449 (2d ed. 1979); C. Wright, A. Miller & E. Cooper, 14 Federal Practice and Procedure ¶ 3723, at 597-98 (1st ed. 1976); see, e. g., Preaseau v. Prudential Insurance Co. of America, 591 F.2d 74, 78 (9th Cir. 1979); Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969). As the Ninth Circuit enunciated in Morris, Inc. v. Vitek, supra, 412 F.2d at 1176, Whenever federal jurisdiction in a removal case depends upon complete diversity, the existence of diversity is determined from the fact of citizenship of the parties named and not from the fact of service. [(Footnote omitted).] In Preaseau v. Prudential, supra, 591 F.2d at 78-79, the court further explained: We then [in Morris, Inc. v. Vitek ] explicitly rejected the argument that “§ 1441(b), by implication, expanded removal jurisdiction to permit removal, despite want of diversity, if a resident defendant whose presence would defeat diversity had not been served.” [(Citation omitted).] We agree with this view. The Court in Pullman grounded its decision on the requirement of section 71 that a defendant seeking removal based on diversity of citizenship must show" }, { "docid": "919878", "title": "", "text": "MEMORANDUM AND ORDER JOSEPH H. YOUNG, District Judge. Dunkin Donuts of America, Inc. (DDA), in the business of selling donut franchises, entered into a franchise agreement with the defendant, Family Enterprises, Inc., under which the defendant was given the right to operate one of the plaintiff’s franchise outlets. Pursuant to the agreement, the defendant established a DDA retail outlet in Baltimore, Maryland. The plaintiff filed suit in the Circuit Court for Baltimore City, alleging that the defendant breached the franchise agreement. A petition for removal of the action was filed by the defendant pursuant to 28 U.S.C. § 1441 on August 2, 1974, and the plaintiff promptly filed a motion to remand on August 5, 1974. A district court is required to notice and determine federal jurisdiction of a removed case, Lomax v. Duchow, 163 F.Supp. 873 (D.Neb.1958), and the plaintiff has correctly challenged removal by its motion to remand. Title 28 U.S.C. § 1441(a) provides for the removal from state courts of civil actions over which district courts have original jurisdiction: Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. Pursuant to this statute, the defendant filed to remove the instant action to this Court based on diversity of citizenship between the parties under 28 U.S.C. § 1332. The defendant has followed the proper procedure for removal under 28 U.S.C. § 1446. However, with regard to diversity of citizenship, § 1441(b) provides that a civil action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. Removal jurisdiction is therefore narrower than' original jurisdiction for diversity cases and § 1441(b) effectively prevents a citizen who is sued in the courts of his own state from removing the cause to a" }, { "docid": "6005437", "title": "", "text": "SWEET, District Judge. This action was commenced by Robert C. Wurdeman (“Wurdeman”) in the Supreme Court of the State of New York, County of New York, by service of an order to show cause and summons and complaint seeking replevin of 79 stamps which had been submitted by him to the Philatelic Foundation (the “Foundation”) for certification. The order to show cause was made returnable, after one adjournment, to November 20, 1985. One day before the scheduled hearing in state court, the Foundation filed a petition removing the action to federal court where it was assigned as a matter related to a pending federal civil action previously brought by the Foundation against Wurdeman and several others. Wurdeman has now brought a motion for an order pursuant to 28 U.S.C. § 1447(c) remanding this action to state court on the ground that it was improperly removed and for the payment of costs and attorney’s fees. For the reasons set forth below, Wurdeman’s motions will be granted. Discussion In its petition for removal, the Foundation asserted that this court had original jurisdiction due to diversity of citizenship, 28 U.S.C. § 1332, and, therefore, removal was appropriate under 28 U.S.C. § 1441(a). Both parties concede that diversity exists between the parties since Wurdeman is a citizen of California and the Foundation is a New York corporation. The citizenship of the other defendant, William M. Miller, Jr., Chairman of the Foundation, has not been demonstrated, but in any event, no party asserts that he is a citizen of California which would destroy complete diversity. However, as Wurdeman convincingly demonstrates, the Foundation apparently overlooked 28 U.S.C. 1441(b) which provides that a diversity action “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Since at least one of the defendants is a citizen of this state, this action could not properly be removed on the basis of diversity- Having conceded that this case may not be removed as a matter of diversity jurisdiction, the Foundation now" }, { "docid": "10259395", "title": "", "text": "citizens or subjects of a foreign state are additional parties____ 28 U.S.C. § 1332(a). When a plaintiff files an action in state court over which a district court otherwise could have exercised original jurisdiction, such action may be removed by the defendant or defendants “to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). When the district court’s original jurisdiction is premised on diversity of citizenship, the removal statute imposes the further restriction that none of the removing parties “properly joined and served as defendants [may be] a citizen of the State in which such action is brought.” Id. § 1441(b). Due to the presence of resident defendants Kellum and NMMC in this action when it was first filed in state court, diversity of citizenship did not exist at that time and this court could not have exercised original jurisdiction over the action. However, with the dismissal of those defendants, the remaining parties’ citizenship became completely diverse. The defendants then removed, pursuant to section 1446 which provides: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In her motion to remand, the plaintiff asserts that even though complete diversity now exists, the defendants improperly removed the action on February 28, 1997, because more than one year had elapsed after she filed her original Complaint on February 6, 1996. The defendants counter that the action was not actually commenced until April 9, 1996, when the plaintiff served the first summonses. In the alternative, they submit that the plaintiffs Amended Complaint" }, { "docid": "10265584", "title": "", "text": "order of remand remanding the action again to state court on the grounds that the attempt at removal was premature because of the 157th Judicial District Court’s stay of the effectiveness of its order of severance during the pendency of Continental Oil Company’s petition for writ of mandamus to vacate the order of severance. Defendant PPG, however, filed a third petition for removal alleging diversity as its jurisdictional basis which again fell on this court’s docket. Plaintiff again filed a motion to remand which this court is compelled to grant. After so many trips back and forth from state to federal court, both plaintiff and defendant have filed extensive briefs on the subject of remand and removal. 28 U.S.C. 1441 has two major limitations on removal. Section 1441(a) provides that cases can be removed only if the United States District Court would have original jurisdiction. In other words, for the purposes of this suit, there must be complete diversity. Section 1441(b) provides that in diversify cases actions shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen in a state in which such action is brought. In other words, a resident defendant may not remove. Defendant therefore has significant problems in trying to remove this action to federal court. First, as long as Olin is joined as a party to the state court proceeding there is no complete diversity. As far as the three newly-added defendants are concerned, Dow and Conoco are both incorporated in Delaware and the defendant Big Three is a citizen of Texas, and, therefore, there is both no complete diversity and a resident defendant. Defendant argues that since Olin has been severed in state court it is no longer a defendant and, therefore, this court should ignore it for removal purposes. This question brings us to the murky limits of a voluntary-involuntary rule followed by the Fifth Circuit in Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir. 1967). In that case, Judge Hutcheson held that 28 U.S.C. § 1446(b) which reads as follows: “(b)" }, { "docid": "10000883", "title": "", "text": "doubts about the propriety of removal are resolved in favor of remand. See In re Bus. Men’s Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993); McHugh v. Physicians Health Plan of Greater St. Louis, 953 F.Supp. 296, 299 (E.D.Mo.1997). If “at any time before final judgment it appears that the district court lacks subject matter jurisdiction,” the case must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c). III. DISCUSSION In her Motion to Remand, Plaintiff claims this action should be remanded to the Circuit Court for the Twenty-First Judicial Circuit, St. Louis County, Missouri, for lack of subject matter jurisdiction [ECF Nos. 14, 15]. Plaintiff does not contend the diversity and amount in dispute requirements of 28 U.S.C. § 1332 are not met; rather, she contends GSK’s removal violates the “forum-defendant rule,” codified at 28 U.S.C. § 1441(b)(2). The “forum-defendant rule,” pertaining to removal of state civil actions to federal district courts when a named defendant is a citizen of the state in which Plaintiff has filed, states: A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b)(2). “The intent underlying the forum defendant rule and the ‘joined and served’ language is to allow out-of-state defendants to avoid local bias and remove to a federal forum, while preventing plaintiffs from joining, but not serving, forum defendants to block removal.” Perez v. Forest Labs., Inc., 902 F.Supp.2d 1238, 1245 (E.D.Mo.2012). As previously noted, no defendant named in Plaintiffs state pleading, including forum defendant Forest Pharmaceuticals, had been served when GSK LLC filed its Notice of Removal in this Court. Plaintiff asserts' that none of the defendants could be properly served pre-removal, because the state court clerk had not issued summons to enable service to be effected; and she argues the forum-defendant rule bars removal when a case is removed before an" }, { "docid": "3358579", "title": "", "text": "§ 1332(a). Diversity must be complete — that is, the citizenship of each plaintiff must be different from that of each defendant. Toste Farm, Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995). Although a defendant may generally remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction,” 28 U.S.C. § 1441(a), a civil action otherwise removable solely on the basis of the diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). In other words, if any properly joined defendant here is a citizen of California, removal to federal court is not permitted. This is known as the forum defendant rule. Thus, lack of diversity or the presence of an in-forum defendant produce the same result of requiring remand due to improper removal. As the removing parties, Defendants bear the burden of establishing federal jurisdiction. In re Pharm. Indus. Average Wholesale Price Litig., 431 F.Supp.2d 109, 116 (D.Mass.2006); see Hertz Corp. v. Friend, 559 U.S. 77, 96, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). The removal statute is strictly construed, and any doubts about the propriety of removal are resolved in favor of remand to the state forum. Pharm. Indus., 431 F.Supp.2d at 116; see 28 U.S.C. § 1447. II. THE CITIZENSHIP OF FRESENIUS USA A. Background and Legal Standard For diversity purposes, a corporation is deemed to be a citizen of both the state where it is incorporated and the state in which it maintains its principal place of business. 28 U.S.C. § 1332(c)(1). Citizenship is determined as of the date of the commencement of the lawsuit; here, the first of these complaints was filed in July 2013, and all others in either the remainder of 2013 or 2014. See Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995). Fresenius USA is and at all relevant times has been incorporated in Massachusetts. The parties disagree," }, { "docid": "6005438", "title": "", "text": "this court had original jurisdiction due to diversity of citizenship, 28 U.S.C. § 1332, and, therefore, removal was appropriate under 28 U.S.C. § 1441(a). Both parties concede that diversity exists between the parties since Wurdeman is a citizen of California and the Foundation is a New York corporation. The citizenship of the other defendant, William M. Miller, Jr., Chairman of the Foundation, has not been demonstrated, but in any event, no party asserts that he is a citizen of California which would destroy complete diversity. However, as Wurdeman convincingly demonstrates, the Foundation apparently overlooked 28 U.S.C. 1441(b) which provides that a diversity action “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Since at least one of the defendants is a citizen of this state, this action could not properly be removed on the basis of diversity- Having conceded that this case may not be removed as a matter of diversity jurisdiction, the Foundation now asserts in opposition to the motion to remand that Wurdeman’s action for replevin necessarily involves a question of federal law. As explained in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983), “Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Wurdeman’s action for replevin was brought pursuant to Section 7101 of the New York C.P.L.R. which provides a cause of action to “try the right to possession of a chattel.” If Wurdeman’s right to possession of the stamps necessarily raises an issue of federal law, then this case would satisfy the well-pleaded complaint rule enunciated in Franchise Tax Board, supra, and both original and removal jurisdiction would attach to this action. The Foundation asserts that the Racketeer Influenced" }, { "docid": "3972347", "title": "", "text": "an action under this section.”) Pursuant to 28 U.S.C. § 1445, FELA actions brought in state court are nonremoveable. 28 U.S.C. § 1445(a) (“A civil action in any State court ... arising under ... 45 U.S.C. 51-54, 55 — 60[ ] may not be removed to any district court of the United States.”) Therefore, a Jones Act claim “is not subject to removal to federal court even in the event of diversity of the parties.” Lewis, 531 U.S. at 455, 121 S.Ct. 993. Defendants concede that “[gjenerally speaking, Jones Act claims are nonremoveable.” (Resp. at 5; see also id. at 9.) Nonetheless, Defendants argue that Plaintiffs Jones Act claim is removable in this situation because (1) Plaintiffs general maritime claims are removable, and (2) Section 1441(c), which ordinarily requires nonremovable claims to be severed and remanded to state court, does not apply to combinations of claims in which one claim falls under the court’s admiralty jurisdiction. (See Resp. at 10-12). Because the court finds that Plaintiffs general maritime claims are not removable, Defendant’s argument necessarily fails at step one. Plaintiffs Jones Act claim is not removable. Lewis, 531 U.S. at 455, 121 S.Ct. 993. IV. CONCLUSION For the foregoing reasons, the court GRANTS Plaintiffs’ motion for remand. (Dkt. # 10.) The court ORDERS that: 1. Pursuant to 28 U.S.C. §§ 1447(c) and 1447(d), all further proceedings in this case are REMANDED to the Superior Court for King County in the State of Washington; 2. The Clerk of the Court shall send copies of this order to all counsel of record for all parties; 3. Pursuant to 28 U.S.C. § 1447(c), the Clerk of the Court shall mail a certified copy of the order of remand to the Clerk of the Court for the Superior Court for King County, Washington; 4. The Clerk of the Court shall also transmit the record herein to the Clerk of the Court for the Superior Court for King County, Washington; 5. The parties shall file nothing further in this matter, and instead are instructed to seek any further relief to which they believe they are" }, { "docid": "23140190", "title": "", "text": "of different States.” 28 U.S.C. § 1332(a) (2006). To remove a case based on diversity jurisdiction, the diverse defendant must aver that all of the requirements of diversity jurisdiction have been met. See 28 U.S.C. § 1446(a) (2006). Complete diversity of citizenship of the parties is required, since an “action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b) (2006). A plaintiff who believes a case has been improperly removed may seek remand under the provisions of 28 U.S.C. § 1447(c), which provides: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” A plaintiff may not defeat diversity jurisdiction by improperly joining a non-diverse defendant with no genuine connection to the matter. Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir.2010). This rule is known as the doctrine of fraudulent joinder: The doctrine of fraudulent joinder is meant to prevent plaintiffs from joining non-diverse parties in an effort to defeat federal jurisdiction. Under the doctrine, courts overlook the presence of a non-diverse defendant if from the pleadings there is no possibility that the claims against that defendant could be asserted in state court. The defendant bears the heavy burden of proving the circumstances by clear and convincing evidence, with all factual and legal ambiguities resolved in favor of plaintiff. Id. (quoting Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir.2004)). Notwithstanding the foregoing, if a jurisdictional defect exists at some time prior to a district court’s entry of judgment, the court’s judgment is still valid if the jurisdictional defect is cured before final judgment is entered. In Caterpillar, Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), the Supreme Court held that a district court’s error in failing to remand an improperly removed case was not fatal to the ensuing adjudication where federal jurisdiction existed when judgment was entered. According" }, { "docid": "5130670", "title": "", "text": "a party solely in its capacity as a trustee under a deed of trust, contract lien, or security instrument. On the same day, the Substitute Trustees filed an Original Answer, containing a similar verified denial. On June 30, 2010, Wells Fargo and U.S. Bank timely removed the case to this Court, claiming diversity of citizenship under 28 U.S.C. § 1332(a), arguing that the Law Firm and the Substitute Trustees, all Texas residents, were improperly joined. Plaintiffs challenge the propriety of removal in their Motion to Remand, filed on July 30, 2010. Legal Standard A defendant may remove a civil action filed in state court to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441(b) (2006). Removal jurisdiction is strictly construed because it implicates important federalism concerns. See Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.2002). In considering a motion to remand, a court is to resolve issues of material fact in the plaintiffs favor, and any doubts are to be resolved against removal. Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.2000). The removing party bears the burden of establishing jurisdiction. Shearer v. Sw. Serv. Life. Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008). Congress has given federal district courts subject matter jurisdiction over civil matters where the amount in controversy exceeds $75,000 and where the parties are citizens of different states. 28 U.S.C. § 1332(a) (2006). Diversity cases are only removable when “none of the parties in interest properly joined and served as defendants is a citizen of the State in which [the] action is brought.” 28 U.S.C. § 1441(b) (2006) (emphasis added); accord Cantor v. Wachovia Mortg. Corp., 641 F.Supp.2d 602, 606 (N.D.Tex.2009) (Lynn, J.). If a defendant has been improperly joined, the citizenship of that defendant is disregarded for purposes of determining diversity. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.2004) (en banc) (citing 28 U.S.C. § 1359). “ ‘When a defendant removes a case to federal court on a claim of improper joinder, the district court’s first inquiry is whether the" }, { "docid": "19694759", "title": "", "text": "orders in 28 U.S.C. § 1447(d). This construction of § 1292(b) is supported by the Ninth Circuit’s treatment of remand orders as final orders under 28 U.S.C. § 1291. Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 278 (9th Cir.1984). If they are final orders under § 1291, remand orders cannot also be interlocutory orders under § 1292. Thus, the application must be denied. VII IT IS ORDERED: 1. This action, having been removed improvidently and without jurisdiction, hereby is REMANDED to the Superior Court of the State of California for the County of Los Angeles. 28 U.S.C. § 1447(c). 2. Plaintiff’s request for attorney’s fees is DENIED. Each party shall bear its own costs and attorney’s fees on removal and remand. 28 U.S.C. § 1447(c). 3. Defendant’s application that this order by certified for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), is DENIED. 28 U.S.C. §§ 1291 & 1447(d). . In its notice of removal, defendant contended that this action was removable because it was a parens patriae action. It argued that such an action is brought on behalf of the citizens of California who are the real parties in interest; therefore, that complete diversity of citizenship existed because all plaintiffs are citizens of California and defendant is a citizen of Michigan. In its response to the OSC, defendant has abandoned this contention and the court need not pursue it further. . Defendant correctly notes that the existence of diversity of citizenship jurisdiction should be based on an examination of the citizenship of the real parties in interest. Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 460-61, 100 S.Ct. 1779, 1781-82, 64 L.Ed.2d 425 (1980). .Section 17204. does not expressly state that an injunctive action may be brought in the name of the People. Because of the express grant of authority to the district attorney in § 17206(a), to proceed in the name of the People, the court need not decide whether such a right may be implied under §. 17204. It also need not decide the related issue of whether, under either the" }, { "docid": "18174220", "title": "", "text": "TANG, Circuit Judge: In March, 1980, Goldberg, representing a class of indirect purchasers, filed a class action in the California state court, alleging violations of the Cartwright Act, Cal.Bus. & Prof.Code § 16700 et seq., and restraint of trade under California common law. She named as defendants eight corporate manufacturers of corn derivatives, all incorporated in states other than California, and 100 Doe defendants, 50 of whom were allegedly California citizens. On April 29, 1980, defendants removed the suit from state to federal court, claiming diversity of citizenship and federal question jurisdiction. Goldberg’s motion to remand was granted by the district court on August 13, 1980. The court acknowledged that none of the named defendants was a California resident, while all of the plaintiffs were, but found removal improper because the Doe allegations defeated diversity. Goldberg v. CPC International, Inc., 495 F.Supp. 233 (N.D.Cal.1980). On December 30, 1980, Goldberg filed an “At-Issue Memorandum” in the California Superior Court, enabling the case to be placed on the active calendar. The form memorandum included the following statement by one of the attorneys for the plaintiff class: I hereby represent to the court that all essential parties have been served with process or have appeared herein and that this case is at issue as to all such parties ... that to my knowledge no other parties will be served with a summons prior to the time of trial, and I know of no further pleading to be filed. (emphasis added). As no Doe defendants had been served with process, the defendants again removed the case to federal court. Defendants (CPC) alleged that the $10,000.00 amount in controversy requirement of 28 U.S.C. § 1332 was satisfied, despite the small individual claims of the class members, because plaintiffs’ potential attorneys’ fees would exceed that amount. Goldberg’s motion for remand was denied March 6, 1981, and the order was certified for appeal pursuant to 28 U.S.C. § 1292(b). The issue is whether the jurisdictional amount in controversy is satisfied. We find that it is not. In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct." }, { "docid": "3358578", "title": "", "text": "cases in diversity. 28 U.S.C. § 1332. If any properly joined defendants are citizens of California, however, removal to this Court would be unavailable on two grounds: first, by the absence of diversity jurisdiction, and second by the forum defendant rule, codified as 28 U.S.C. § 1441(b)(2). For the reasons discussed below, I find that remand is unwarranted because the diversity requirement is satisfied here. In so doing, I find that Mr. Weisman was fraudulently joined and accordingly will grant his motions to dismiss. I. LEGAL STANDARD FOR REMOVAL A defendant has a limited statutory right to remove a case filed in state court to federal court. See 28 U.S.C. §§ 1441, 1446. At a minimum, the federal court must have original jurisdiction over the action, and the defendant must comply with a variety of procedural requirements. See id.; Samaan v. St. Joseph Hosp., 670 F.3d 21, 27 (1st Cir.2012). A federal district court has original jurisdiction over civil actions between citizens of different states in which the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Diversity must be complete — that is, the citizenship of each plaintiff must be different from that of each defendant. Toste Farm, Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995). Although a defendant may generally remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction,” 28 U.S.C. § 1441(a), a civil action otherwise removable solely on the basis of the diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). In other words, if any properly joined defendant here is a citizen of California, removal to federal court is not permitted. This is known as the forum defendant rule. Thus, lack of diversity or the presence of an in-forum defendant produce the same result of requiring remand due to improper removal. As the removing parties, Defendants bear the burden of establishing federal" }, { "docid": "23313820", "title": "", "text": "holding. III. Conclusion We hold that the forum defendant rule embodied in § 1441(b) is a procedural requirement, and thus a violation of this rule constitutes a waivable non-jurisdictional defect subject to the 30-day time limit imposed by § 1447(c). In this case, because Lively failed to object, the district court exceeded its § 1447(c) authority in ordering a remand. Therefore, we review the district court’s remand order pursuant to § 1447(d), and vacate the order and remand for further proceedings consistent with this opinion. ORDER VACATED and REMANDED. . In its notice of removal, Wild Oats stated that \"this action may be removed ... pursuant to the provisions of 28 U.S.C. Section 1441(b).” Because Wild Oats’ removal was based on diversity jurisdiction, we assume that Wild Oats meant to state that removal was proper under § 1441(a), not § 1441(b). . Section 1441(b) provides: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b) (2006). . Although we have not directly addressed the nature of the forum defendant rule, this issue was raised in Spencer v. United States Dist. Court for the N. Dist. of Cal., 393 F.3d 867 (9th Cir.2004). Spencer involved a post-removal joinder of a local, diverse defendant. In determining that the joinder did not necessitate a remand to state court, \"[t]he district court determined that the 'forum defendant’ rule is procedural rather than jurisdictional.” Id. at 869. We affirmed, holding that the district court did not err in determining that diversity jurisdiction was not destroyed by the post-removal joinder. Id. at 868. The basis for our decision was the fact that the local defendant was joined after the case had been removed to federal court, and, therefore," }, { "docid": "23140189", "title": "", "text": "notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal.” Fed. RApp. P. 26(b)(1). We have held that a Court of Appeals “has no power whatever to extend the deadline for filing [a] notice of appeal.” Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986); see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994). Moreover, the Clerk of Court or her representative is authorized to decide only “routine, unopposed procedural motions,” Local Rule 27.1(c), and the Clerk’s representative had no authority to extend the time to appeal in this case. II. Of Removal and Remand The federal removal statute allows a defendant to remove an action to federal court in “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a) (2006). The district courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a) (2006). To remove a case based on diversity jurisdiction, the diverse defendant must aver that all of the requirements of diversity jurisdiction have been met. See 28 U.S.C. § 1446(a) (2006). Complete diversity of citizenship of the parties is required, since an “action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b) (2006). A plaintiff who believes a case has been improperly removed may seek remand under the provisions of 28 U.S.C. § 1447(c), which provides: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” A plaintiff may not defeat diversity jurisdiction by improperly joining a non-diverse defendant with no genuine connection to the matter. Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir.2010). This rule is known as the doctrine of fraudulent joinder: The doctrine" }, { "docid": "18419616", "title": "", "text": "more than thirty days after service of the complaint was untimely). Because Cott-rell failed to remove this case within thirty days from the date of service of the Younts’ complaint, the removal is untimely. Conclusion The motion for remand brought by Plaintiffs Keith Yount and Cindy Yount (Doc. 7) is GRANTED. This action is REMANDED to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, pursuant to 28 U.S.C. § 1447(c) by reason of procedural defects in removal. The Younts’ request for an award of just costs and actual expenses, including attorney fees, pursuant to 28 U.S.C. § 1447(c) is DENIED. The Clerk of Court is DIRECTED to mail a certified copy of this Order to the clerk of the state court and to close the file in this case. IT IS SO ORDERED. . In evaluating complete diversity of citizenship in cases removed from state court to federal court, \"the citizenship of defendants sued under fictitious names shall be disregarded.” 28 U.S.C. § 1441(a). Therefore, the fact that the Younts' operative complaint joins “Unknown Defendants” is not an obstacle to removal in diversity. The Court notes certain defects in Cottrell's pleading of jurisdictional facts in its notice of removal. First, with respect to the Allen Cassens Trust and the Albert Cassens Trust, Cottrell alleges that the trusts are \"citizen[s] of Illinois, incorporated under the laws of the State of Illinois and having [their] principal placets] of business in Illinois.” Doc. 2 ¶ 25, ¶ 26. A trust is not treated as a corporation for diversity purposes, and instead the citizenship of a trust is the citizenship of its trustee or trustees, unless the law under which the trust is organized permits the trust to sue and be sued in its own name, in which case the citizenship of the trust for diversity purposes is that of its beneficiaries. See Allegis Group, Inc. Contractors Health Plan Trust v. Conn. Gen. Life Ins. Co., No. 04-16, 2004 WL 1289862, at **2-4 & n. 3 (D.Md. June 10, 2004). Second, Cottrell's notice of removal contains no jurisdictional allegations with respect" }, { "docid": "657834", "title": "", "text": "corporation, and against Beard, a citizen of Mississippi, alleging claims for negligence and gross negligence, and seeking to recover compensatory and punitive damages. On that same date, Consolidated was served with process, and oh October 23, Consolidated and Beard, who at that time had not yet been served, filed a notice of removal pursuant to 28 U.S.C. § 1446 and § 1441(b), asserting federal jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. A week later, on October 30, Beard was served with process. Plaintiffs have now moved to remand, arguing that because Beard is a resident of Mississippi, and because he joined in the removal petition, then pursuant to 28 U.S.C. § 1441(b), there is a fatal defect in the removal procedure and the case must be remanded. Section 1441(b) provides that diversity actions shall be removable “only if none of the parties in interest properly joined and served as defendants. is a citizen of the State in which such action is brought.” 28 U.S.C-. § 1441(b). Relying upon the plain language of this statute,-defendants argue that a Mississippi resident defendant must be. served before removal is prohibited by § 1441(b). Plaintiffs, on the other hand, argue that whether served or not, Beard’s, presence precludes removal under § 1441(b). In the court’s opinion, defendants are correct. There is no question , but that the presence of a defendant who is a citizen of the same state as the plaintiff destroys complete diversity and, therefore, federal jurisdiction. See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir.1992) (“The diver sity statute requires ‘complete diversity’ of citizenship: a district court cannot exercise diversity jurisdiction if one of the plaintiffs shares the same state citizenship as one of the defendants”) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)). Further, the law is clear that the citizenship of all named defendants, whether served with process or not, must be considered in determining whether complete diversity exists, thereby providing a jurisdictional basis for removal under 28 U.S.C. § 1441(a). That is to say, “an action based on" }, { "docid": "16425589", "title": "", "text": "in state court is not removable to federal court as a federal question. Therefore, this action was removed improvidently and without jurisdiction and, pursuant to 28 U.S.C. § 1447(c) (1982), must be remanded. It is therefore ORDERED that Plaintiffs’ Motion to Remand be, and is hereby, GRANTED, and that the above-captioned actions be REMANDED to the 125th Judicial District Court of Harris County, Texas, from which they were removed. . . In addition to the suits which are the subject of this order, the above-named Plaintiffs have filed an action arising out of the same facts in the 151st Judicial District Court of Harris County, Texas, against Petrobras. Petrobras is not a Defendant in the actions before this Court. . This Court notes that the original removal of the Filho action on diversity grounds was improper. The United States Supreme Court has held that a party that has been named but not served may not be ignored for the purpose of determining diversity removal jurisdiction. Pullman Co. v. Jenkins, 305 U.S. 534, 541, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939). The Pullman decision was rendered prior to the addition in 1948 of the language of § 1441(b), which provides: “Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.” 28 U.S.C. § 1441(b) (1982) (emphasis added). Although some courts have questioned whether this language should alter the Pullman holding, with few exceptions, the courts have continued to follow Pullman. See, e.g., Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983); Preaseau v. Prudential Ins. Co., 591 F.2d 74, 78-79 (9th Cir.1979); Costner v. Exxon Co., 563 F.Supp. 684, 687 (E.D.Pa.1983); Schwegmann Bros. Giant Super Markets, Inc. v. Pharmacy Reports, Inc., 486 F.Supp. 606, 614 (E.D.La.1980). This language in section 1441(b) should properly be read as predicated on the initial compliance with 28 U.S.C. § 1441(a), i.e. the suit must be originally cognizable in federal court. To construe it otherwise \"would court needless jurisdictional problems.”" } ]

[ { "docid": "17044971", "title": "", "text": "the likelihood of injury.”). We do not disagree with the conclusions reached in Frey and in the Uitts cases on their facts. However, in the case at bar, we find that information concerning post-1967 Toronado fuel supply systems and nearby parts may lead to admissible evidence concerning defects or unreasonably dangerous characteristics and the feasibility of correcting them and of knowledge (and consequent failure to warn) by GM of such conditions in the 1966 Toronado before plaintiffs’ accident in May 1970. One case which we have found is very nearly on point and another one cited by defendant supports out conclusion that in some cases information concerning different models may be reasonably calculated to lead to admissible evidence. In Lindberger v. General Motors Corporation, 56 F.R.D. 433 (W.D.Wis.1972), Judge Doyle permitted discovery of information concerning changes which were made in the design or malfunction warning system of the brakes on a GM front end loader subsequent to its manufacture. Judge Doyle found such discovery “relevant” and “not privileged” under Rule 26(b)(1); he noted that it might lead to admissible evidence of feasibility or knowledge involved in plaintiff’s suit based on negligence, breach of warranties and/or products liability theories. And, in Hammill v. Hyster Company, 42 F.R.D. 173 (E.D.Wis. 1967), the court permitted plaintiff to discover tipping incidents regarding any model Hyster Karry Krane, even though they related to other than the model involved in the case at bar. In Hammill, discovery was confined to the tipping incidents on or before the date of the accident in that case. That is what we do here. . Some three years after the accident, Mrs. Bowman died of cancer. Whether or not the injuries sustained in the accident contributed in any way to her death is a matter of dispute between the remaining parties. . Pretrial memoranda are yet to be filed; however, plaintiffs’ theories have been advanced to the Court through counsel at a number of discovery conferences and hearings on motions. . Plaintiffs also ask defendant to detail by number and description all patents owned by or available to GM on" } ]

[ { "docid": "23372015", "title": "", "text": "Model MH. Hofer sought discovery relating to predecessor designs (specifically Models F and W) manufactured since 1975, citing numerous design and materials changes. Hofer desired to discover information which would support a showing that Mack departed from a prior, safer design, the reasons for the departures, and any comparisons by Mack of the crashworthiness and safety of the models. Hofer’s motion to compel was denied by the district court, which essentially stated that the requested materials were neither relevant nor discoverable. Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence. Kramer v. Boeing Co., 126 F.R.D. 690, 692 (D.Minn.1989) (and cases cited therein). While the standard of relevance in the context of discovery is broader than in the context of admissibility (Rule 26(b) clearly states that inadmissibility is no grounds for objection to discovery), Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122 (S.D.N.Y.1986), this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case. In this case, Hofer articulated two reasons for discovery about Mack’s predecessor designs and the departures therefrom. Hofer refers to a nonspecific allegation that the change in overall construction, from reinforced steel and aluminum to fiberglass, affected the general crashworthiness of the model MH truck. More specifically, Hofer states that, “The matter of a departure from a fully enclosed storage compartment in constructing the MH model truck cab was at the core of Hofer’s claim.” Brief for Appellant at 27. First, it is clear that the differences and departures in the design of the storage compartment were fully explored at trial. (It should be noted" }, { "docid": "15976907", "title": "", "text": "information has an important bearing upon the determination of a claim that a subpoena duces tecum is unreasonable or oppressive, as. well as to a claim of confidentiality for the material sought to be produced, and that a sufficient showing of need for the information will suffice to overcome such objections—albeit compliance with the subpoena may be subjected to protective orders or conditioned upon payment of expenses by the party seeking disclosure. See, e.g., Centurion Industries, Inc. v. Warren Steurer, 665 F.2d 323, 325 (10th Cir.1981); Covey Oil Company v. Continental Oil Company, 340 F.2d 993, 997-999 (10th Cir.1965); Citicorp v. Interbank Card Ass’n, 87 F.R.D. 43, 47 (S.D.N.Y.1980); United States v. Intern. Bus. Mach. Corp., 83 F.R.D. 97, 104-109 (S.D.N.Y.1979). The test of relevance under Fed.R.Civ.P. rule 26(b), incorporated by reference in Fed.R.Civ.P. rule 45(d)(1), is stated as “relevant to the subject matter involved in the pending action,” and includes even inadmissible matter “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The phrase “relevant to the subject matter involved in the pending action,” while broad in itself, is confined to “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978) (emphasis added). Thus the test of relevance stated in Fed.R.Ev. rule 401—“ ‘[rjelevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”—must be brought to bear on a determination of objections to a subpoena duces tecum based on burden-someness and confidentiality of the items of information sought, along with other factors bearing on the requesting party’s need for such items. Plaintiff seeks to demonstrate both relevancy of and need for the subpoenaed items by the assertion that the Morris facility is the only operative high-level nuclear waste storage facility in the country," }, { "docid": "10860081", "title": "", "text": "S.Ct. 983, 986-987, 2 L.Ed.2d 1077 (1958). See also Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 498 (1970) (relevancy is to be accorded “flexible treatment”). However, the scope of discovery is not without limits, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 351-52, 98 S.Ct. 2380; Hickman v. Taylor, 329 U.S. at 507-08, 67 S.Ct. 385; Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 139 (W.D.Okl.1977); Shaver v. Yacht Outward Bound, 71 F.R.D. 561, 563 (N.D.Ill.1976); Corbett v. Free Press Association, 50 F.R.D. 179, 181 (D.Vt.1970); Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 607 (D.D.C.1969); Greene v. Raymond, 41 F.R.D. at 13; Flickinger v. Aetna Casualty & Surety Co., 37 F.R.D. 533, 534 (W.D.Pa.1965), and is committed to the sound discretion of the trial court. Dollar v. Long Manufacturing N. C., Inc., 561 F.2d at 618; Bowman v. General Motors Corp., 64 F.R.D. at 71; Corbett v. Free Press Association, 50 F.R.D. at 181; Essex Wire Corp. v. Eastern Electrical Sales Co., 48 F.R.D. 308, 310 (E.D.Pa.1969). The party seeking discovery has the burden of showing clearly that the information sought is relevant to the subject matter of the action and would lead to admissible evidence. Clark v. Universal Builders, Inc., 501 F.2d 324, 340 (7th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974); Pierson v. United States, 428 F.Supp. 384, 390 (D.Del.1977), unless the information is privileged, in which event it is not discoverable. Equal Employment Opportunity Commission v. Otto, 75 F.R.D. 624, 626 (D.Md.1976); Hawes v. C. E. Cook & Co., 64 F.R.D. 22, 26 (W.D.Mich.1974), vacated and remanded, 538 F.2d 329 (6th Cir. 1976); Essex Wire Corp. v. Eastern Electrical Sales Co., 48 F.R.D. at 310, Fed.R.Civ.P. 26(b)(1). Plaintiffs Request for Production of Documents Number 5 seeks “[c]opies of any affirmative action plan in existence from the year 1972 to 1977”. Similarly, in the interrogatories plaintiff requests Mack to State whether Mack Truck, Inc. has an Affirmative Action Plan or agreement with the Commonwealth of Pennsylvania. If so, attach a copy of such plan" }, { "docid": "20343701", "title": "", "text": "< ORDER REID, United States Magistrate Judge. On May 5, 1995, defendant filed a motion to compel (Doc. 36-37). A response was filed on May 30, 1995 (Doc. 42-43). A reply brief was filed on June 12, 1995 (Doc. 47). Defendant seeks from the plaintiff a notebook containing handwritten notes and other documents pertaining to meetings involving former Boeing employees. Defendant has sought since October 26, 1994 to obtain either the notebook or a privilege log. Plaintiff has failed to produce either. Plaintiffs first argument is that defendant has failed to demonstrate the relevance of the information requested. The standards for relevance are set forth in Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan.1994): Plaintiffs counsel also argues that the records sought are not relevant. Relevancy has been defined as encompassing any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of this action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action. Jones v. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 (D.Kan.1993); Snowden v. Connaught Laboratories, Inc., 137 F.R.D. 325, 329 (D.Kan.1991); Gagne v. Reddy, 104 F.R.D. 454, 456 (D.Mass.1984); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D.Pa.1980); Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 138-39 (W.D.Okla.1977). The court finds that the information sought could be relevant to the subject matter of this action. The second issue concerns plaintiffs failure to comply with Fed.R.Civ.P. 26(b)(5). That rule provides that: When a party withholds information otherwise discoverable under these rules by claiming that it" }, { "docid": "3303696", "title": "", "text": "the proper litigation of all relevant facts, to eliminate surprise, and to promote settlement. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Stark v. Photo Researchers, Inc., 77 F.R.D. 18 (S.D.N.Y.1977); Xerox Corp. v. International Business Machines Corp., 75 F.R.D. 668 (S.D.N.Y.1977); Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348 (S.D.N.Y.1973). The Sloan court itself recognized that these policies may demand the disclosure of personnel files despite the conflicting policies favoring non-disclosure. Accordingly, Sloan did not purport to create an automatic bar to discovery of personnel files. Rather, following well-established law, the court held that even where strong public policy against disclosure exists, as in the case of personnel files, discovery is nonetheless allowed if (1) the material sought is “clearly relevant,” and (2) the need for discovery is compelling because the information sought is not otherwise readily obtainable. In the present case, this court finds that the preceding test is satisfied. As discussed previously, Coopers’ personnel files are clearly relevant to the claims brought by Trustee. The analysis which produced this conclusion need not be repeated here. Trustee has also shown a compelling need for the personnel files. The files contain a contemporaneous evaluation and description of Coopers’ auditing work for THC, and were made without litigation in mind, giving the personnel files an inherent reliability which cannot now be duplicated by any other source of evidence. Therefore, Coopers’ personnel files will be ordered produced. Protective Order The court, however, being sensitive to the strong interests of employees’ privacy and the need to preserve the free flow of candid communications in an accounting office, orders Coopers to produce the requested personnel files and employee evaluations subject to the following Protective Order: (1) The personnel files may be examined only by Trustee’s counsel and by persons acting under the direction and control of counsel. (2) The personnel files are to be produced solely for the use of Trustee’s counsel in this litigation, and for no other purpose." }, { "docid": "18229065", "title": "", "text": "for failure to warn. While the parties take a differing view of whether the plaintiffs have withdrawn all failure to warn claims, the issue squarely before the court is whether FIFRA pre-exempts all state common-law claims for failure to warn involving products within the coverage of FIFRA. The scope of discovery permitted under Fed.R.Civ.P. 26(b)(1) is as follows: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking dis covery or to the claim or defense of any other party, ... The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. ' Relevancy, for purposes of discovery, has been defined by the United States Supreme Court as encompassing “any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Discovery requests should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Plaintiffs rely on the recent United States Supreme Court decision in Medtronic v. Lohr, — U.S. -, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), wherein the Court considered whether the Medical Device Amendments of 1976 pre-empted a state common-law negligence claim against the manufacturer of an allegedly defective medical device for failure to warn of an allegedly known tendency of a pacemaker to fail. The Court there found that the MDA did not pre-empt the common-law duty to warn prospective purchasers of potentially dangerous items of the known risks associated with such items’ use. Id. The defendants rely on Arkansas-Platte & Gulf" }, { "docid": "12931335", "title": "", "text": "requests for claims of no fault insurance paid before and after the filing of the lawsuit were irrelevant because plaintiff could determine defendant’s reason for denying her claim by deposing defendant’s decision-makers. See also Prouty v. National R.R. Passenger Corp., 99 F.R.D. 545, 549 (D.D.C.1983) (all lawsuits by discharged employees during a certain period); Miller v. Doctor’s General Hospital, 76 F.R.D. 136 (W.D. Okla.1977) (lawsuits and complaints filed against defendant for employment discrimination); Goodman v. International Business Machine Corp., 59 F.R.D. 278 (N.D. Ill.1973) (other personal injury claims arising out of the same incident); Hicks v. Crown Zellerbach Corp., 49 F.R.D. 184 (E.D.La.1968) (other charges by plaintiff with the Equal Employment Opportunity Commission); and Wood v. McCullough, 45 F.R.D. 41 (S.D.N.Y.1968) (other medical malpractice actions filed against doctors). A decision to require a party to produce its litigation and claims histories involves more than assertions of relevancy. Such requests will always have some modicum of relevance. The more critical factor is whether the need for the information, considering its relevancy and the nature of the case, outweighs the burdensomeness of the request. Rule 26(b)(1), Fed.R.Civ.P., provides a list of policy concerns for determining need for these types of discovery disputes. Rule 26(b)(1) provides that discovery need not be confined to matters of admissible evidence but may encompass that which “appears reasonably calculated to lead to the discovery of admissible evidence.” Relevancy is to be broadly construed for discovery purposes and is not limited to the precise issues set out in the pleadings or to the merits of the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Rather, discovery requests may be deemed relevant if there is any possibility that the information may be relevant to the general subject matter of the action. As a result, discovery rules are to be accorded broad and liberal construction. Buffington v. Gillette Co., 101 F.R.D. 400 (W.D.Okla.1980) (collecting cases); Matter of Hawaii Corp., 88 F.R.D. 518, 523 n. 4 (D.Haw.1980). One of the consequences of permitting liberal discovery is that the parties may engage in successive" }, { "docid": "18087958", "title": "", "text": "privileged. Prior to reaching the privilege questions, the Court will determine whether any of the other objections should be sustained. I. RELEVANCE The first analysis, by necessity, encompasses relevance. If the requested information is not relevant to the case at hand, or reasonably calculated to lead to the discovery of admissible evidence, the inquiry ends. Defendants’ claim those documents sought in Requests Nos. 3, 5, 9, 13, 15, and 18 are irrelevant. Based on the allegations made in the complaint the Court can discern few more relevant documents than the documents sought in Requests Nos. 9, 13, 15, and 18. Such documents could arguably be used pursuant to F.R.E. 404(b), 407 or 608(b). Moreover, the requested documents, if they exist, may prove the sort of policy necessary to prevail against Defendant City of San Bernardino under the analysis of Monnel v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Parties are permitted to discover any relevant nonprivileged matter. Fed. R.Civ.P. 26(b)(1). This rule is construed very broadly, encompassing “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Discovery is not limited to the issues raised only in the pleadings, but rather it is designed to define and clarify the issues. Id. at 351, 98 S.Ct. at 2389. To limit an examination to matters relevant to only the precise issue presented by their pleadings, would not only be contrary to the express purpose of Rule 26____, but also might result in a complete failure to afford plaintiff an adequate opportunity to obtain information that would be useful at the trial. Stevenson v. Melady, 1 F.R.D. 329, 330 (C.D.N.Y.1940). This is true not only of depositions but of other discovery devices permitted by the rules. The requirement of relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms. Discovery of information that" }, { "docid": "10860079", "title": "", "text": "whether it relates to the claim or defense of . any other party . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Relevancy, and to a lesser extent burdensomeness, constitute the principal inquiry in ruling upon objections to interrogatories. Superior Coal Co. v. Ruhrkohle, A. G., 83 F.R.D. 414, 422 (E.D.Pa.1979); In re United States Financial Securities Litigation, 74 F.R.D. 497, 498 (S.D.Cal.1975); Greene v. Raymond, 41 F.R.D. 11, 14 (D.Colo.1966); Lumbermen’s Mutual Casualty Co. v. Pistorino & Co., 28 F.R.D. 1, 2 (D.Mass.1961). In the interests of fair trial, eliminating surprise and achieving justice, United States v. Purdome, 30 F.R.D. 338, 340 (W.D.Mo.1962); Stonybrook Tenants Association, Inc. v. Alpert, 29 F.R.D. 165, 168 (D.Conn.1961), relevancy, construed liberally, creates a broad vista for discovery, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Dollar v. Long Manufacturing, N. C., Inc., 561 F.2d 613, 616 (5th Cir. 1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Eastland v. Tennessee Valley Authority, 553 F.2d 364, 370 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977); Spier v. Home Insurance Co., 404 F.2d 896, 899 (7th Cir. 1968); Edgar v. Finley, 312 F.2d 533, 535 (8th Cir. 1963); Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961); Bowman v. General Motors Corp., 64 F.R.D. 62, 69 (E.D. Pa.1974); Morgan Smith Automotive Products, Inc. v. General Motors Corp., 54 F.R.D. 19, 20 (E.D.Pa.1971); Frey v. Chrysler Corp., 41 F.R.D. 174, 176 (W.D.Pa.1966), and makes trial “less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent”. United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78" }, { "docid": "4451809", "title": "", "text": "is relevant to the subject matter involved in the pending action.” That Rule provides that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” As the Supreme Court noted in Oppenheimer Fund, Inc v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978): [t]he key phrase in this definition — ‘relevant to the subject matter in the pending action’ — has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case ... Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues ... Nor is discovery limited to the merits of a case, for a variety of fáct-oriented issues may arise during litigation that are not related to the merits. Id. at 351, 98 S.Ct. at 2389, citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388-89, 91 L.Ed. 451 (1947). ' Thus, discovery will generally be allowed if the information sought is “relevant to the subject matter of the action and there is a reasonable possibility that [it] may provide a lead to other evidence that will be admissible.” 8 C. Wright & J. Miller, Federal Practice and Procedure § 2008 at 49-50 (1970); Bowman v. Consolidated Rail Corp., 110 F.R.D. 525 (N.D.Ind.1986); People's Trust Bank v. United States, 103 F.R.D. 519 (N.D.Ind.1983); Weddington v. Consolidated Rail Corp., 101 F.R.D. 71, 73-74 (N.D.Ind.1984). At the same time, however, the scope of discovery is not without limits. “Practical considerations dictate that parties not be permitted to roam in shadow zones of relevance and to explore matter which does not appear germane merely on the theory that it might become so.” Shepard’s, Discovery Proceedings in Federal Court § 14.4 at 221 (2d ed. 1991). “The responses sought must comport with the traditional" }, { "docid": "22288055", "title": "", "text": "Tenants Association, Inc. v. Alpert, 29 F.R.D. 165, 168 (D.Conn.1961), relevancy, construed liberally, creates a broad vista for discovery, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) . . . and makes trial “less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent”. United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 57 (E.D.Pa.1979). Additionally, the facts and circumstances of each case determine and limit relevance of interrogatories. Shang v. Hotel Waldorf Astoria Corp., 77 F.R.D. 468, 469 (S.D.N.Y.1978), Hoffman v. Wilson Line, Inc., 7 F.R.D. 73, 74 (E.D.Pa.1946). In Interrogatory Number Three plaintiff seeks to discover asbestos products which GAF manufactured, processed, compounded, converted, sold, supplied or distributed since 1925. GAF’s primary objection to this interrogatory is the broad time frame included by plaintiff, whose employment spanned the years 1942 to 1977. However, plaintiff alleges conspiracies antedating plaintiff’s employment history and intended to disguise and distort information which would have suggested to plaintiff the unreasonably dangerous and ultrahazardous nature of working with asbestos. Accordingly, plaintiff’s selected time frame is not wholly unreasonable or irrelevant. Such a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of the action. . . . The scope of examination by interrogatories should not be curtailed unless the information sought is clearly irrelevant. Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 138-39 (W.D.Okl.1977) (citations omitted). See also In re Folding Carton Antitrust Litigation, 83 F.R.D. 251, 254 (N.D.Ill.1978), United States v. IBM Corp.," }, { "docid": "12561131", "title": "", "text": "and transcripts of radio messages made concerning the incident. Defendants object to both the request for internal affairs investigations and request for statements of witnesses and police officers on the following grounds: Relevancy and Overbreadth Defendants assert that the request is not relevant to any issues in this litigation, nor reasonably calculated to lead to the discovery of admissible evidence. Defendants further assert that the request is overbroad as to time, subject matter and officers, in that the request includes investigations which do not involve complaints against the officers named in this action and does not seek complaints regarding investigations with respect to use of excessive force in arrests by the named officers. Under the Federal Rules of Civil Procedure, the parties may obtain discovery regarding any matter that is (1) “not privileged” and (2) “relevant to the subject matter involved in the pending action.” Fed. R.Civ.P. 26(b)(1). Furthermore, “[t]he information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The scope of discovery under the Federal Rules is extremely broad. A relevant matter is “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Because discovery is designed to define and clarify the issues, it is not limited to only those specific issues raised in the pleadings. Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D.Cal.1992) (citing Oppenheimer, 437 U.S. at 351, 98 S.Ct. at 2389-90). Rather, the question of relevancy should be construed “liberally and with common sense” and discovery should be allowed unless the information sought has no conceivable bearing on the case. Miller, 141 F.R.D. at 296. Although in general the party seeking to compel discovery bears the burden of showing that his request satisfies the relevance requirement of Rule 26, the court in Kelly v. City of San Jose, 114 F.R.D. 653, 667-68 (N.D.Cal.1987), concluded that in" }, { "docid": "19720998", "title": "", "text": "possibility that the information sought may be relevant to the subject matter of the action.’ 8 Wright & Miller, Federal Practice and Procedure, Civil § 2008 (1970). See Midland-Ross Corp. v. United Steelworkers of America, 83 F.R.D. 426 (W.D.Pa.1979); In re Folding Carton Antitrust Litigation, 83 F.R.D. 251 (N.D.Ill. 1978).” Am Int’l, Inc. v. Eastman Kodak Co., 100 F.R.D. 255, 257 (1981). “No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir.1977) (citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1878); see Bennett v. La Pere, 112 F.R.D. 136, 138 (D.R.I.1986). “Moreover, even if [a party’s] broad request yields some evidence that is not admissible, this does not bar a request that is calculated to lead to production of relevant matter. Fed.R.Civ.P. 26(b)(1); Federal Practice and Procedure at § 2008; see also, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978).” Fann v. Giant Food, Inc., 115 F.R.D. 593, 596 (D.D.C.1987). “One objecting to discovery on the grounds of relevancy carries the burden to sustain the objection.” Kramer v. Boeing Co., 126 F.R.D. 690, 692 (D.Minn.1989). “This is a difficult objection upon which to prevail during the discovery phase of an action. The spirit of Rule 26(a) of the Federal Rules of Civil Procedure is that discovery be self-effectuating, without need to resort to the court, and that its scope be liberal, extending to all matters reasonably calculated to lead to admissible evidence. This standard is well-ensconced, and is generally known and understood by civil practitioners.” Id. (citations omitted.) The phrase “reasonably calculated to lead to the discovery of admissible evidence” has been interpreted as meaning" }, { "docid": "12561132", "title": "", "text": "The scope of discovery under the Federal Rules is extremely broad. A relevant matter is “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Because discovery is designed to define and clarify the issues, it is not limited to only those specific issues raised in the pleadings. Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D.Cal.1992) (citing Oppenheimer, 437 U.S. at 351, 98 S.Ct. at 2389-90). Rather, the question of relevancy should be construed “liberally and with common sense” and discovery should be allowed unless the information sought has no conceivable bearing on the case. Miller, 141 F.R.D. at 296. Although in general the party seeking to compel discovery bears the burden of showing that his request satisfies the relevance requirement of Rule 26, the court in Kelly v. City of San Jose, 114 F.R.D. 653, 667-68 (N.D.Cal.1987), concluded that in the context of civil rights excessive force cases against police departments, plaintiffs may suffer great difficulties if courts impose demanding relevancy standards on them. Because it is unlikely that such a plaintiff would know the contents of confidential police files, the court suggests that it should be “sufficient for a plaintiff to show how information of the land that is likely to be in the files could lead to admissible evidence.” Id. at 667-68. The court reasons: It does not seem fair ... to demand that a plaintiff identify with particularity the information that is in confidential police files and demonstrate specifically how that information is relevant to his claims. [A] judge should resolve doubts about relevance in favor of disclosure, in part because she is not likely to understand the case as well as plaintiffs counsel, and thus is not likely to be able to foresee all the ways he might be able to use the information, and in part because the standard set forth in Rule 26 is so broad. Id. at 668." }, { "docid": "3303695", "title": "", "text": "are relevant for the purposes of Rule 26(b), public policy favoring personal privacy and candid employee performance evaluations might prevent discovery of personnel files. 22 Fed.R. Serv.2d at 503. Here, Coopers advances similar public policy considerations against discovery. In particular, Coopers argues that revealing the contents of the personnel files would breach its employees’ expectations of confidentiality and cause serious morale problems. Further, Coopers maintains that if discovery of personnel files is generally allowed, accounting firms might cease to frankly criticize their own performance for fear that any written evaluations they prepare may be used against them or their employees in a lawsuit. By chilling the free flow of candid communications in this manner, the ability of accounting firms to maintain their standards and to improve employee performance will arguably be impaired. Although the weightiness of these public policy interests is conceded, it cannot be denied that countervailing interests which support discovery are also at work. Discovery must be accorded a broad and liberal scope in order to provide both parties with information essential to the proper litigation of all relevant facts, to eliminate surprise, and to promote settlement. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Stark v. Photo Researchers, Inc., 77 F.R.D. 18 (S.D.N.Y.1977); Xerox Corp. v. International Business Machines Corp., 75 F.R.D. 668 (S.D.N.Y.1977); Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348 (S.D.N.Y.1973). The Sloan court itself recognized that these policies may demand the disclosure of personnel files despite the conflicting policies favoring non-disclosure. Accordingly, Sloan did not purport to create an automatic bar to discovery of personnel files. Rather, following well-established law, the court held that even where strong public policy against disclosure exists, as in the case of personnel files, discovery is nonetheless allowed if (1) the material sought is “clearly relevant,” and (2) the need for discovery is compelling because the information sought is not otherwise readily obtainable. In the present case, this court finds that the preceding test is satisfied." }, { "docid": "15396818", "title": "", "text": "MINUTE ORDER THEIS, Senior District Judge: IT IS ORDERED that the plaintiff’s objections to magistrate’s order (Doc. 25) filed in the above captioned case shall be and are hereby overruled. ORDER REID, United States Magistrate Judge. On October 30, 1992, defendant filed a motion for a protective order limiting the scope of discovery (Doc. 13). On November 5, 1992, plaintiff filed a motion to compel and a response to the motion for protective order (Doc. 15-16). On November 12, 1992, defendant filed a reply on the motion for a protective order (Doc. 20), and a response to plaintiffs motion to compel (Doc. 21). Plaintiff, a woman, alleges that she was the subject of sexual harassment by a female supervisor, Captain Deborah Blanton, at the Kansas Army Ammunitions Plant in Parsons, Kansas. The controversy over discovery centers on whether plaintiff can seek information about the sexual preference or orientation of Captain Blanton. Relevancy has been defined as encompassing any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of this action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action. Snowden v. Connaught Laboratories, Inc., 137 F.R.D. 325, 329 (D.Kan.1991); Gagne v. Reddy, 104 F.R.D. 454, 456 (D.Mass.1984); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D.Pa.1980); Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 138-39 (W.D.Okla.1977). There are two distinct categories of sexual harassment claims. The first is quid pro quo sexual harassment, in which submission to sexual conduct is made a condition of concrete employment benefits. The second" }, { "docid": "23372017", "title": "", "text": "that Mack did agree to produce the designs, diagrams, and blueprints of the bunk base (storage compartment) portion of the predecessor models. The record reflects this agreement; whether or not the production actually took place is not clear from the record before us.) Second, two of Hofer’s experts independently located, examined, and photographed actual F and W truck models. In addition, Hofer’s primary expert stated that he saw diagrams of the two predecessor models. The differences in construction were thus examined and analyzed, and were explained to the jury at trial. In previous cases, decided in a variety of jurisdictions, the courts have set forth no black letter rule of law regarding discovery of predecessor models in products liability cases, other than to state that discovery of similar, if not identical, models is generally permitted. Culligan, 110 F.R.D. at 126. (“Generally, different models of a product will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.” Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y.1990).) Rather, the courts have undertaken a fact specific determination of the extent of the similarities or dissimilarities, and have inquired about the basis for the discovery request. We do the same here. Sufficient similarities have been found to exist where it was alleged that three-wheel all-terrain vehicles are inherently unstable, Culligan, supra; where a plaintiff maintained that a redesigned motor mount that failed in his car had not eliminated the defects found in earlier models, Swain v. General Motors Corp., 81 F.R.D. 698 (W.D.Pa.1979); and where an airplane engine failure was alleged, the area was highly technical and complex, and the defendant controlled exclusively all access to the technical data, Kramer v. Boeing Co., 126 F.R.D. 690 (D.Minn.1989). See also Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Uitts v. General Motors Corp., 58 F.R.D. 450 (E.D.Pa.1972). On the other hand, discovery has been denied where the predecessor" }, { "docid": "18336930", "title": "", "text": "are governed by the liberal standard set forth in Rule 26(b)(1), which permits discovery “regarding of any matter, not privileged, which is relevant to the subject matter involved in the pending action.” That Rule provides that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” As the Supreme Court noted in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978): [t]he key phrase in this definition-relevant to the subject matter in the pending action’—has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case ... Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues ... Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits. Id. at 351, 98 S.Ct. at 2389, citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947). Thus, discovery will generally be allowed if the information sought is “relevant to the subject matter of the action and there is a reasonable possibility that [it] may provide a lead to other evidence that will be admissible.” 8 C. Wright & J. Miller, Federal Practice and Procedure § 2008 at 49-50 (1970); Bowman v. Consolidated Rail Corp., 110 F.R.D. 525 (N.D.Ind.1986); People’s Trust Bank v. United States, 103 F.R.D. 519 (N.D.Ind.1983); Weddington v. Consolidated Rail Corp., 101 F.R.D. 71, 73-74 (N.D.Ind. 1984). At the same time, however, the scope of discovery is not without limits. “Practical considerations dictate that parties not be permitted to roam in shadow zones of relevance and to explore matter which does not appear germane merely on the theory that it might become so.” Shepard’s, Discovery Proceedings in" }, { "docid": "10860080", "title": "", "text": "234, 13 L.Ed.2d 152 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Dollar v. Long Manufacturing, N. C., Inc., 561 F.2d 613, 616 (5th Cir. 1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Eastland v. Tennessee Valley Authority, 553 F.2d 364, 370 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977); Spier v. Home Insurance Co., 404 F.2d 896, 899 (7th Cir. 1968); Edgar v. Finley, 312 F.2d 533, 535 (8th Cir. 1963); Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961); Bowman v. General Motors Corp., 64 F.R.D. 62, 69 (E.D. Pa.1974); Morgan Smith Automotive Products, Inc. v. General Motors Corp., 54 F.R.D. 19, 20 (E.D.Pa.1971); Frey v. Chrysler Corp., 41 F.R.D. 174, 176 (W.D.Pa.1966), and makes trial “less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent”. United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-987, 2 L.Ed.2d 1077 (1958). See also Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 498 (1970) (relevancy is to be accorded “flexible treatment”). However, the scope of discovery is not without limits, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 351-52, 98 S.Ct. 2380; Hickman v. Taylor, 329 U.S. at 507-08, 67 S.Ct. 385; Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 139 (W.D.Okl.1977); Shaver v. Yacht Outward Bound, 71 F.R.D. 561, 563 (N.D.Ill.1976); Corbett v. Free Press Association, 50 F.R.D. 179, 181 (D.Vt.1970); Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 607 (D.D.C.1969); Greene v. Raymond, 41 F.R.D. at 13; Flickinger v. Aetna Casualty & Surety Co., 37 F.R.D. 533, 534 (W.D.Pa.1965), and is committed to the sound discretion of the trial court. Dollar v. Long Manufacturing N. C., Inc., 561 F.2d at 618; Bowman v. General Motors Corp., 64 F.R.D. at 71; Corbett v. Free Press Association, 50 F.R.D. at 181; Essex Wire Corp. v. Eastern Electrical Sales Co., 48 F.R.D. 308, 310 (E.D.Pa.1969)." }, { "docid": "23372018", "title": "", "text": "439, 441 (S.D.N.Y.1990).) Rather, the courts have undertaken a fact specific determination of the extent of the similarities or dissimilarities, and have inquired about the basis for the discovery request. We do the same here. Sufficient similarities have been found to exist where it was alleged that three-wheel all-terrain vehicles are inherently unstable, Culligan, supra; where a plaintiff maintained that a redesigned motor mount that failed in his car had not eliminated the defects found in earlier models, Swain v. General Motors Corp., 81 F.R.D. 698 (W.D.Pa.1979); and where an airplane engine failure was alleged, the area was highly technical and complex, and the defendant controlled exclusively all access to the technical data, Kramer v. Boeing Co., 126 F.R.D. 690 (D.Minn.1989). See also Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Uitts v. General Motors Corp., 58 F.R.D. 450 (E.D.Pa.1972). On the other hand, discovery has been denied where the predecessor models did not share pertinent characteristics with the products at issue. Sufficiently dissimilar characteristics have been found to exist where a plaintiff sought information about a vehicle recall, but the models recalled did not have the same component as the one at issue in the litigation, Uitts v. General Motors Corp., 62 F.R.D. 560 (E.D.Pa.1974), where the court permitted discovery of three model years immediately preceding the model at issue, but denied discovery as to a still earlier model because it was too dissimilar, Prashker v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958), and where a plaintiff was not able to make even a threshold showing that airplane bladder tanks or wetwing fuel systems were potential substitutes, or potentially safer than, metal fuel tanks, Fine v. Facet Aerospace Products Co., 133 F.R.D. 439 (S.D.N.Y.1990). See also Butkowski v. General Motors Corp, 497 F.2d 1158 (2d Cir.1974); Frey v. Chrysler Corp., 41 F.R.D. 174 (W.D.Pa.1966). In the instant case we are satisfied that" } ]

[ { "docid": "6628676", "title": "", "text": "protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Bhd. of Carpenters and Joiners of America, Local 610 (Carpenters) v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3355-56, 77 L.Ed.2d 1049 (1983); de Botton, 689 F.Supp. at 482. Plaintiffs claim that some of the women seeking abortions in the metropolitan Philadelphia area reside in states other than Pennsylvania, and that defendants conspired together to obstruct these women in the exercise of their constitutional right to travel. They also claim that the purpose of defendants’ conspiracy is to interfere with the exercise of the “constitutional right to abortion.” I will now examine each of the elements of plaintiffs’ § 1985(3) claims. 1. The Conspiracy At the outset, defendants do not deny or dispute plaintiffs’ allegation that the defendants constitute a conspiracy. See Defendants' Answer to Plaintiffs’ Motion for Summary Judgment [Defendants’ Answer] at 11 (“The conspiracy of defendants was motivated by an economic or commercial animus_”) (emphasis added). When the alleged conspiracy is aimed at a right protected only against state interference, the plaintiff must prove that the conspiracy included state involvement of some sort. Carpenters, 463 U.S. at 831-34, 103 S.Ct. at 3357-59; Rashid v. Public Sav. Ass’n, 97 B.R. 187 (E.D.Pa.1989); New York State Nat’l Org. of Women v. Terry, 704 F.Supp. 1247 (S.D.N.Y.1989). In this case, plaintiffs claim that defendants’ conspiracy is aimed at two of plaintiffs’ constitutional rights: the right to travel; and the “constitutional right to abortion.” These rights will be discussed more fully below. 2. Motivation of the Conspiracy A conspiracy is within the scope of § 1985(3) only if it is motivated by some class-based, invidiously discriminatory intent. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Although the Supreme Court in Griffin left open the question of whether conspiracies motivated by something other than racial bias" } ]

[ { "docid": "7861378", "title": "", "text": "tails that the class is undeserving of § 1985(3) protection. A statute that disenfranchised African Americans would be no less a deprivation of equal protection of the laws simply because it was intended to affect only that class of African Americans who wish to vote. Virtually any conduct that violates equal protection under § 1985(3) can be characterized as impacting only those members of the class seeking to exercise the predicate statutory or constitutional right. The Supreme Court has clearly held, however, that the defendant’s conduct need not affect every member of the class to make out a § 1985(3) violation. See Griffin, 403 U.S. 88, 103, 91 S.Ct. 1790, 1799 (upholding claim against defendants whose animus was directed against blacks supporting civil rights efforts). To the extent that the defendant’s conduct limits the ability of women to secure an abortion, it trenches upon the rights of all women. We conclude with the following elegant discussion of this issue by the Second Circuit in Terry: It is sophistry for defendants to claim a lack of class-based animus because their actions are directed only against those members of a class who choose to exercise particular rights, but not against class members whose actions do not offend them. The denial of ill-will towards the women they target and the claim that defendants’ actions will benefit these women amount to an argument that ‘we are doing this for your own good’; a contention that usually shields one’s actual motive. Defendants cannot seriously urge that they do not intentionally infringe on the right of women to seek access to the clinics. That was one of the major objectives of the demonstrations ... all of which were purposefully aimed to deny the right of women as a class to gain access to clinics. Terry, 886 F.2d at 1360: accord Roe v. Operation Rescue, 710 F.Supp. 577, 581 (E.D.Pa.1989), aff'd on otker grounds, 919 F.2d 857 (3d Cir.1990). We therefore hold that VMC has shown sufficient evidence of class-based animus to bring an action under § 1985(3). C. State action It is beyond dispute that §" }, { "docid": "22768394", "title": "", "text": "their activities reveal an attitude or animus based on gender. Defendants’ argument that their actions are directed against an activity, or only a “subgroup” of women rather than women in general, is insufficient to escape the scope of § 1985(3). In most cases of invidious discrimination, violations of constitutional rights occur only in response to the attempts of certain members of a class to do something that the perpetrators found objectionable, such as travelling interstate with the perceived purpose of promoting civil rights. See, e.g., Griffin, 403 U.S. at 90, 91 S.Ct. at 1792-93. It is sophistry for defendants to claim a lack of class-based animus because their actions are directed only against those members of a class who choose to exercise particular rights, but not against class members whose actions do not offend them. The denial of ill-will towards the women they target and the claim that defendants’ actions will benefit these women amount to an argument that “we are doing this for your own good”; a contention that usually shields one’s actual motive. Defendants cannot seriously urge that they do not intentionally infringe on the right of women to seek access to the clinics. That was one of the major objectives of the demonstrations of May 2, May 3, May 5, May 6 and October 29, 1988 all of which were purposefully aimed to deny the right of women as a class to gain access to clinics. And, to a significant degree, they succeeded. The record is replete with incidents supporting this conclusion and the district court’s findings in this regard cannot be said to be clearly erroneous. Consequently, it is apparent that defendants acted within the scope of § 1985(3) by (1) engaging in a conspiracy; (2) against a cognizable class of persons, with invidious class-based animus; and (3) committed the requisite overt acts in furtherance of the conspiracy. The remaining question is whether this conspiracy deprived plaintiffs and the women on whose behalf this claim was asserted of any constitutional right. Plaintiffs allege that these rights were violated in two ways: first, that the conspiracy intended" }, { "docid": "10488261", "title": "", "text": "The U.S.C. § 1985(3) Claims To prevail on a § 1985(3) claim, a plaintiff must prove that: (1) defendants engaged in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) acted in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Terry, 886 F.2d at 1358 (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)). It is well established that § 1985(3) provides a cause of action for private conspiracies. Id. (citations omitted). Where the alleged conspiracy is aimed at the deprivation of a constitutional right guaranteed against government interference, for example, rights secured by the First and Fourteenth Amendments, plaintiffs must demonstrate “state involvement.” Id. (citation omitted). A conspiracy is within the scope of § 1985(3) only if it is motivated by some class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. “Animus” means a motive or intent to interfere with the exercise of a right; not hostility, ill-will or personal animosity. Id. at 102 n. 10, 91 S.Ct. at 1798 n. 10; Terry, 886 F.2d at 1359-60. While the Supreme Court has thus far declined to rule on whether § 1985(3) reaches conspiracies directed against a class identified by characteristics other than race, United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 836, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) (“close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans.”); Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9, the Second Circuit in Terry expressly held that women seeking abortions constitute, a protected class for purposes of § 1985(3). Terry, 886 F.2d at 1359. In this case, plaintiffs have proven, by a preponderance of the evidence," }, { "docid": "7861380", "title": "", "text": "1985(3) provides a remedy for conspiracies involving private actors to deprive persons of their constitutional rights. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 96-98, 91 S.Ct. 1790, 1795-96, 29 L.Ed.2d 338 (1971). Moreover, the Supreme Court has consistently held that claims under § 1985(3), unlike those under 42 U.S.C. § 1983, need not allege that the deprivation occurred at the hands of the state. Id. at 99, 91 S.Ct. at 1797; United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 832, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983). The Griffin Court concluded that a proper reading of the statute foreclosed a state action requirement analogous to that required under § 1983 or the Fourteenth Amendment: [I]t is hard to see how the conspiracy aspect [of § 1985(3) ] ... could be read to require the involvement of state officers. ... [Tjhere is nothing inherent in the phrase [“equal protection” as utilized in § 1985(3) ] that requires the action working the deprivation to come from the State. See e.g., United States v. Harris, 106 U.S. 629, 643 [27 L.Ed. 290 (1883)]. Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivations of ‘equal protection of the laws’ and ‘equal privileges and immunities under the laws,’ whatever their source. Griffin, 403 U.S. at 96-97, 91 S.Ct. at 1795-96. Accord Macko v. Bryon, 641 F.2d 447, 450 (6th Cir.1981) (no state action requirement under § 1985(3)); Smith v. Martin, 542 F.2d 688, 690 (6th Cir.1976) (same), cert. denied, 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 388 (1977). The Supreme Court affirmed the continuing validity of Griffin’s reading of § 1985(3) in Scott, in which the Court held that § 1985(3) is broad enough to reach even “purely private conspiracies.” Id., 463 U.S. at 832, 103 S.Ct. at 3358. Thus, the fact that defendants are private actors in and of itself in no way immunizes their conduct from the reach of § 1985(3). Still, the Supreme Court has consistently interpreted § 1985(3)" }, { "docid": "22768388", "title": "", "text": "Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). It is well-settled that § 1985(3) provides a cause of action for private conspiracies. See United Bhd. of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, 832-33, 103 S.Ct. 3352, 3358-59, 77 L.Ed.2d 1049 (1983); Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979); Griffin, 403 U.S. at 101, 104, 91 S.Ct. at 1799 (Congress may constitutionally provide cause of action against private conspiracies). When the asserted constitutional deprivation is based upon a right guaranteed against government interference — for example, rights secured by the Fourteenth Amendment— plaintiffs must demonstrate some “state involvement.” See Carpenters, 463 U.S. at 833, 103 S.Ct. at 3358-59. Despite its applicability to purely private conspiracies, § 1985(3) is limited in two interrelated ways. First, the Supreme Court has emphasized that § 1985(3) may not be construed as a “general federal tort law.” Griffin, 403 U.S. at 101-02, 91 S.Ct. at 1797-98. Rather, a plaintiff must demonstrate “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102, 91 S.Ct. at 1798. Second, not all classes of persons fall within the protective ambit of § 1985(3). See Carpenters, 463 U.S. at 835-37, 103 S.Ct. at 3359-61. The Supreme Court has specifically left open the question of whether this statute was aimed against any other class-based animus than that directed against blacks and their supporters at the time of its enactment. Carpenters, 463 U.S. at 836-39, 103 S.Ct. at 3360-62; Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9. Legislative history, the Supreme Court acknowledged, supported the view that § 1985(3) went beyond racially motivated conspiracies, but it held that animus based generally upon the economic views or commercial interests of a class were beyond the statute’s scope. Carpenters, 463 U.S. at 837-39, 103 S.Ct. at 3360-62. Thus, the threshold issue is whether § 1985(3) encompasses conspiracies motivated by an animus against a class of women seeking" }, { "docid": "3848005", "title": "", "text": "of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir.1994); Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir.1987); see also Mian, 7 F.3d at 1087. In addition, the conspiracy must be motivated by “ ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.’ ” United Bhd. of Carpenters & Joiners, 463 U.S. at 829, 103 S.Ct. 3352 (quoting Griffin, 403 U.S. at 102, 91 S.Ct. 1790); see Hilliard, 30 F.3d at 653 (citing Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir.), cert. denied, 512 U.S. 1207, 114 S.Ct. 2680, 129 L.Ed.2d 814 (1994)); Mississippi Women’s Med. Clinic v. McMillan, 866 F.2d 788, 793 (5th Cir.1989). The Supreme Court has cautioned against the application of § 1985 to commercial disputes: [G]roup actions generally resting on economic motivations should be deemed beyond the reach of § 1985(3). Economic and commercial conflicts ... are best dealt with by statutes, federal or state, specifically addressed to such problems, as well as by the general law proscribing injuries to persons and property. United Bhd. of Carpenters & Joiners, 463 U.S. at 839, 103 S.Ct. 3352. The Supreme Court has also suggested that actionable § 1985(3) claims may be limited to race-based conspiracies. See McLean v. International Harvester Co., 817 F.2d 1214, 1218 (5th Cir.1987) (citing United Bhd. of Carpenters & Joiners, 463 U.S. at 836, 103 S.Ct. 3352). “[I]t is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause.” United Bhd. of Carpenters & Joiners, 463 U.S. at 836, 103 S.Ct. 3352. The Fifth Circuit has noted this limitation: “[SJection 1985(3) will not be extended to every class which" }, { "docid": "5298760", "title": "", "text": "cause.\" Id. 463 U.S. at 836, 103 S.Ct. at 3360. By analogy, and assuming arguendo that section 1985(3) reaches actions triggered by a gender-based animus, section 1985(3) would also protect a class of women and those who champion their cause. In this case, the class might fit under section 1985(3), if we assume that the doctors, nurses, etc. at Dr. Lucero’s clinic can be said to champion women’s cause. What is missing is any indication that the gender of the pregnant women represents the source of defendants’ animus. KRAVITCH, Circuit Judge, dissenting: I agree with the majority that the district court erred in its determination that the federal courts lack jurisdiction in this case. I disagree, however, with the conclusion that the plaintiffs failed to establish the elements of a cause of action under section 1985(3) and that the district court was therefore correct in refusing to grant a preliminary injunction barring further “rescues” at the clinic. In my view, both the district court and the majority have misapplied the law. I therefore dissent from the majority’s decision. I. The Framework of Claims Under Section 1985(3) Plaintiffs alleged that the defendants, Operation Rescue and other named and unnamed individuals, violated 42 U.S.C. § 1985(3) by blocking access to Dr. Bruce Lucero’s medical clinic, which delivers gynecological care, including abortion and abortion-related services, to women. Section 1985(3) was originally enacted by Congress as part of the Ku Klux Klan Act of 1871 and creates a cause of action for private conspiracies with “the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” As the majority notes, two Supreme Court opinions, United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), and Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), provide the analytical framework for examining claims under section 1985(3). According to Scott, a plaintiff must establish four elements: 1. a conspiracy 2. for the purpose of depriving, either" }, { "docid": "22768395", "title": "", "text": "Defendants cannot seriously urge that they do not intentionally infringe on the right of women to seek access to the clinics. That was one of the major objectives of the demonstrations of May 2, May 3, May 5, May 6 and October 29, 1988 all of which were purposefully aimed to deny the right of women as a class to gain access to clinics. And, to a significant degree, they succeeded. The record is replete with incidents supporting this conclusion and the district court’s findings in this regard cannot be said to be clearly erroneous. Consequently, it is apparent that defendants acted within the scope of § 1985(3) by (1) engaging in a conspiracy; (2) against a cognizable class of persons, with invidious class-based animus; and (3) committed the requisite overt acts in furtherance of the conspiracy. The remaining question is whether this conspiracy deprived plaintiffs and the women on whose behalf this claim was asserted of any constitutional right. Plaintiffs allege that these rights were violated in two ways: first, that the conspiracy intended to and did infringe upon women’s constitutionally guaranteed right to travel; and, second, that the conspiracy intended to and did infringe upon women’s right to obtain abortions. (1) Right to Travel The right to interstate travel is guaranteed by the Constitution. See United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966); Griffin, 403 U.S. at 105-06, 91 S.Ct. at 1799-01. Deprivations of that right are actionable under § 1985(3) with no need to show any state action or involvement. Carpenters, 463 U.S. at 832-33, 103 S.Ct. at 3358-59; Novotny, 442 U.S. at 383, 99 S.Ct. at 2354 (Stevens, J., concurring); Griffin, 403 U.S. at 105-06, 91 S.Ct. at 1799-01 (eases “firmly” establish right of interstate travel “is assertable against private as well as governmental interference.”). See also Guest, 383 U.S. at 760, 86 S.Ct. at 1179-80 (private conspiracy to infringe upon right to travel actionable under 18 U.S.C. § 241, criminal analogue of § 1985(3)). In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201" }, { "docid": "7861372", "title": "", "text": "standing involves a two-part inquiry: first, whether the litigant’s relationship with the third party whose right he seeks to assert is such that “the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue,” and second, whether the third party is not as well-situated to assert the allegedly affected right on his own behalf. Id. at 1394 (quoting Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976)). After a careful analysis of Supreme Court precedent, we concluded that the rights of women seeking to exercise their Fourteenth Amendment right to an abortion were inextricably bound up with the services provided by the clinic, and that “women seeking to assert that right for themselves are faced with several obstacles.” Id. at 1396. We rested our analysis in Planned Parenthood largely on Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 2876, 49 L.Ed.2d 826 (1976), where the Supreme Court held that, given the nature of the right involved, “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Accord Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (physician has standing to challenge abortion statute due to “sufficiently direct threat of personal detriment”). The fact that Planned Parenthood involved state interference with the abortion decision, while the interference at issue here occurred at the hands of private actors, does not in any way loosen the nexus between the interests of the clinic and those of the women on whose behalf this suit is brought. We therefore hold that VMC has standing to bring the present action against defendants under § 1985(3). B. Class-based animus The defendants next argue that VMC has failed to prove the class-based animus necessary to bring a § 1985(3) action. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1970), established that a necessary element of § 1985(3) claim is the existence of “some racial, or perhaps otherwise class-based, invidiously" }, { "docid": "7861379", "title": "", "text": "class-based animus because their actions are directed only against those members of a class who choose to exercise particular rights, but not against class members whose actions do not offend them. The denial of ill-will towards the women they target and the claim that defendants’ actions will benefit these women amount to an argument that ‘we are doing this for your own good’; a contention that usually shields one’s actual motive. Defendants cannot seriously urge that they do not intentionally infringe on the right of women to seek access to the clinics. That was one of the major objectives of the demonstrations ... all of which were purposefully aimed to deny the right of women as a class to gain access to clinics. Terry, 886 F.2d at 1360: accord Roe v. Operation Rescue, 710 F.Supp. 577, 581 (E.D.Pa.1989), aff'd on otker grounds, 919 F.2d 857 (3d Cir.1990). We therefore hold that VMC has shown sufficient evidence of class-based animus to bring an action under § 1985(3). C. State action It is beyond dispute that § 1985(3) provides a remedy for conspiracies involving private actors to deprive persons of their constitutional rights. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 96-98, 91 S.Ct. 1790, 1795-96, 29 L.Ed.2d 338 (1971). Moreover, the Supreme Court has consistently held that claims under § 1985(3), unlike those under 42 U.S.C. § 1983, need not allege that the deprivation occurred at the hands of the state. Id. at 99, 91 S.Ct. at 1797; United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 832, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983). The Griffin Court concluded that a proper reading of the statute foreclosed a state action requirement analogous to that required under § 1983 or the Fourteenth Amendment: [I]t is hard to see how the conspiracy aspect [of § 1985(3) ] ... could be read to require the involvement of state officers. ... [Tjhere is nothing inherent in the phrase [“equal protection” as utilized in § 1985(3) ] that requires the action working the deprivation to come from the State. See e.g., United States" }, { "docid": "5298761", "title": "", "text": "the majority’s decision. I. The Framework of Claims Under Section 1985(3) Plaintiffs alleged that the defendants, Operation Rescue and other named and unnamed individuals, violated 42 U.S.C. § 1985(3) by blocking access to Dr. Bruce Lucero’s medical clinic, which delivers gynecological care, including abortion and abortion-related services, to women. Section 1985(3) was originally enacted by Congress as part of the Ku Klux Klan Act of 1871 and creates a cause of action for private conspiracies with “the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” As the majority notes, two Supreme Court opinions, United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), and Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), provide the analytical framework for examining claims under section 1985(3). According to Scott, a plaintiff must establish four elements: 1. a conspiracy 2. for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3. an act in furtherance of the conspiracy 4. whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Scott, 463 U.S. at 828-29, 103 S.Ct. at 3356. Under Griffin, plaintiffs must demonstrate that there is “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” 403 U.S. at 102, 91 S.Ct. at 1798. Together, Griffin and Scott require that there be a class of plaintiffs whose constitutional rights are violated or threatened with violation, and that the action taken by the defendants be motivated against the plaintiffs because of their membership in that class. Plaintiffs alleged that Operation Rescue had formed a conspiracy to violate women’s rights both" }, { "docid": "4076816", "title": "", "text": "the laws and the equal privileges and immunities under the law and obstructing travel, in violation of 42 U.S.C. § 1985(3). Defendants are and continue to be motivated by an invidiously discriminatory animus directed at the class of women seeking to exercise their constitutional and legal right to choose abortions and other family planning services at the targeted facilities, as well as at all facilities in the New York City area. Plaintiffs’ Complaint ¶ 59. A cause of action under section 1985(3) has four essential elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971) (as explained in United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3356-57, 77 L.Ed.2d 1049 (1983)). In addition, where the alleged conspiracy is aimed at a right that is by definition only a right against state interference, such as first and fourteenth amendment rights, the plaintiff in a section 1985(3) action must, as a necessary element of his or her claim, prove that the conspiracy contemplated state involvement of some sort. United Brotherhood of Carpenters & Joiners v. Scott, supra, 463 U.S. at 831-34, 103 S.Ct. at 3357-59. A conspiracy is within the scope of section 1985(3) only if it is motivated by some class-based, invidiously discriminatory animus. The Supreme Court has thus far declined to rule whether section 1985(3) reaches conspiracies directed against a class identified by a characteristic other than race. It is clear, however, that the statute does not “reach conspiracies motivated by bias towards others on account of their economic views, status, or activities.” Id. at 835-39, 103 S.Ct. at 3359-62 (emphasis in original). The majority opinion among" }, { "docid": "12267429", "title": "", "text": "New Bern. 72. The unlawful employment practices described herein were intentional. 73. The unlawful employment practices described herein were done with malice and with reckless indifference to the federally protected rights of Plaintiff Ward. 74. As a direct consequence of Defendants’ intentional and malicious conduct, set forth herein, Plaintiff Ward has suffered lost wages, pain, humiliation, and emotional distress and other damages. See id. ¶¶ 68-74. In order to state a private conspiracy claim under the first clause of 42 U.S.C. § 1985(3), a party must plead (1) a conspiracy of two or more persons, (2) who are motivated by a racial or otherwise class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by federal law to all, (4) which results in injury to plaintiff (5) as a consequence of an overt act committed by the defendants in connection with the conspiracy. See, e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.1995); Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir.1985). A party (such as plaintiff) asserting a private conspiracy claim under the first clause of section 1985(3) must show (1) that some racial or class-based discriminatory animus motivated the conspirator’s actions, and (2) that the conspiracy aimed at interfering with rights that are protected under federal law from both private and official encroachment. See, e.g., Bray, 506 U.S. at 267-68, 113 S.Ct. 753. Section 1985(3) does not create substantive rights. Rather, it creates a remedy for the violation of certain federal constitutional or statutory rights defined elsewhere. See, e.g., United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Gallegos v. City & County of Denver, 984 F.2d 358, 362 (10th Cir.1993). State contract rights are not federal constitutional" }, { "docid": "4076838", "title": "", "text": "any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. . United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 836, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) (\"close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans\"); Griffin v. Breckenridge, 403 U.S. 88, 102 n. 9, 91 S.Ct. 1790, 1798 n. 9, 29 L.Ed.2d 338 (1971) (“We need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985(3) before us.”). . The Court finds quite persuasive plaintiffs’ analogy between defendants activities, seeking forcibly to prevent women from exercising their constitutional right to decide whether to terminate a pregnancy, and the organized actions of the Ku Klux Klan that inspired the 42nd Congress to enact section 1985(3). Plaintiffs’ Memorandum, filed December 21, 1989, at 32-33. Moreover, the special protection accorded to women as a class under the equal protection clause of the fourteenth amendment, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), strongly suggests the propriety of recognizing a cause of action under section 1985(3) founded on a claim of gender-based animus. Defendants argue that a section 1985(3) claim can be asserted only by persons who allege race-based animus. At the January 6, 1989 oral argument, defendants made reference to Saint Francis" }, { "docid": "22768393", "title": "", "text": "believe that Congress would provide a statutory remedy against private conspiracies, the purpose of which is to deny rights common to every citizen, and exclude women as a class from the shelter of its protection. We therefore hold that women may constitute a class for purposes of § 1985(3). C. Defendants’ Activities Under § 1985(3) The record plainly indicates that defendants engaged in a conspiracy to prevent women from obtaining access to medical facilities. Operation Rescue literature encourages participants to gather in front of clinics and blockade them. Defendants agreed with other individuals to engage in unlawful activity, including violations of both state law and women’s constitutional rights. Moreover, defendants facilitated the conspiracy by providing transportation and accommodations to participants. This type of concerted action ultimately involves a conspiracy to engage in unlawful activity. Defendants urge that plaintiffs have demonstrated no class-based animus. They contend that “the concept of animus is one of ill-will.” Yet animus merely describes a person’s basic attitude or intention, and because defendants’ conspiracy is focused entirely on women seeking abortions, their activities reveal an attitude or animus based on gender. Defendants’ argument that their actions are directed against an activity, or only a “subgroup” of women rather than women in general, is insufficient to escape the scope of § 1985(3). In most cases of invidious discrimination, violations of constitutional rights occur only in response to the attempts of certain members of a class to do something that the perpetrators found objectionable, such as travelling interstate with the perceived purpose of promoting civil rights. See, e.g., Griffin, 403 U.S. at 90, 91 S.Ct. at 1792-93. It is sophistry for defendants to claim a lack of class-based animus because their actions are directed only against those members of a class who choose to exercise particular rights, but not against class members whose actions do not offend them. The denial of ill-will towards the women they target and the claim that defendants’ actions will benefit these women amount to an argument that “we are doing this for your own good”; a contention that usually shields one’s actual motive." }, { "docid": "5291093", "title": "", "text": "U.S.C. § 1985, namely, conspiracy to interfere with civil rights. The defendants challenge this cause of action on the ground that the allegations of conspiracy are vague and conclusory. Although the Amended Complaint fails to state the particular subdivision of section 1985 under which the plaintiffs are proceeding, viewing the Amended Complaint on the whole, it appears that they are invoking section 1985(3). In order to state a claim for conspiracy under 42 U.S.C. § 1985(3), a plaintiff must allege that the defendants (1) engaged in a conspiracy, (2) for the purpose of either directly or indirectly depriving him or a class of persons of which he is a member, of equal protection of the laws; and that (3) acts taken by the defendant in furtherance of the conspiracy (4) deprived him, or the class, of the exercise or privilege of a citizen of the United States (see New York State NOW v. Terry, 886 F.2d 1339, 1358 [2d Cir.1989], cert. denied, — U.S. -, 110 S.Ct. 2206, 109 L.Ed.2d 532 [1990]; see also Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338; Sorlucco v. New York City Police Dep’t, 888 F.2d 4, 8 [2d Cir.1989]). Under section 1985, a plaintiff must also demonstrate “ ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action’ ” (New York State NOW v. Terry, supra, 886 F.2d at p. 1358, quoting Griffin v. Breckenridge, supra, 403 U.S. at pp. 102-03, 91 S.Ct. at pp. 1798-99). Although the precise reach of section 1985(3) remains somewhat unresolved, it is clearly aimed at class-based animus directed toward race (see, e.g., United Brotherhood of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 835-37, 103 S.Ct. 3352, 3359-61, 77 L.Ed.2d 1049 [1983]). As the Second Circuit recently stated in Spencer v. Casavilla, 903 F.2d 171 (2d Cir.1990): “Because this section provides no substantive rights itself but merely ‘provides a remedy for violation of the rights it designates’ ..., in order to state a claim under § 1985(3) a complaint must allege, inter alia, that the defendants who" }, { "docid": "7861373", "title": "", "text": "allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Accord Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (physician has standing to challenge abortion statute due to “sufficiently direct threat of personal detriment”). The fact that Planned Parenthood involved state interference with the abortion decision, while the interference at issue here occurred at the hands of private actors, does not in any way loosen the nexus between the interests of the clinic and those of the women on whose behalf this suit is brought. We therefore hold that VMC has standing to bring the present action against defendants under § 1985(3). B. Class-based animus The defendants next argue that VMC has failed to prove the class-based animus necessary to bring a § 1985(3) action. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1970), established that a necessary element of § 1985(3) claim is the existence of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”. The Supreme Court has explicitly left open whether § 1985(3) reaches conduct other than that motivated by racial animus. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 826, 835, 103 S.Ct. 3352, 3359, 77 L.Ed.2d 1049 (1983). Whether women are a protected class under § 1985(3) appears to be an issue of first impression in this circuit. Nevertheless, we have previously had occasion to consider whether the protections of § 1985(3) extend beyond the realm of purely racial animus, and have held unequivocally that it does. See, e.g., Conklin v. Lovely, 834 F.2d 543, 549-50 (6th Cir.1987) (holding that § 1985(3) extends to animus directed against political views); Glasson v. City of Louisville, 518 F.2d 899, 911-12 (6th Cir.) (same) cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir.1973) (same). More importantly, this court has interpreted § 1985(3) to hold that “the class of individuals protected by the ‘equal protection of the laws’ language" }, { "docid": "3848004", "title": "", "text": "and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. 42 U.S.C. § 1985(3). Section 1985(3) creates no rights, but “is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right — to equal protection of the laws or equal privileges and immunities under the laws — is breached by a conspiracy in the manner defined by the section.” Great Am. Fed. S & L Ass’n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). To recover under § 1985(3), the plaintiff must allege and prove four elements: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir.1994); Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir.1987); see also Mian, 7 F.3d at 1087. In addition, the conspiracy must be motivated by “ ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.’ ” United Bhd. of Carpenters & Joiners, 463 U.S. at 829, 103 S.Ct. 3352 (quoting Griffin, 403 U.S. at 102, 91 S.Ct. 1790); see Hilliard, 30 F.3d at 653 (citing Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir.), cert. denied, 512 U.S. 1207, 114 S.Ct. 2680, 129 L.Ed.2d 814 (1994)); Mississippi Women’s Med. Clinic v. McMillan, 866 F.2d 788, 793 (5th" }, { "docid": "23443408", "title": "", "text": "to the plaintiffs’ claim that the defendants conspired to deprive her of the “fundamental right to procreation” in violation of section 1985(3). B. The requirements for establishing a cause of action under 42 U.S.C. § 1985(3) are set forth in a line of Supreme Court cases beginning with the decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There, the Supreme Court clarified that the reach of section 1985(3) is limited to private conspiracies predicated on “racial, or perhaps otherwise class based, invidiously discriminatory animus.” Id. at 102, 91 S.Ct. at 1798. The Court strictly construed the requirement of class-based invidious animus in United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), finding that commercial and economic animus could not form the basis for a section 1985(3) claim. Read together, these two cases establish that in order to state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. Id. at 828-29, 103 S.Ct. at 3356; Griffin v. Breckenridge, 403 U.S. at 102-03, 91 S.Ct. at 1798-99. The vitality of this analysis was reaffirmed in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 758-59, 122 L.Ed.2d 34 (1993). The district court dismissed the plaintiffs’ claim under section 1985(3) based solely upon its conclusion that Elizabeth Lake’s membership in the class of handicapped individuals did not entitle her to the protection afforded by section 1985(3). The issue posed by this dismissal requires us to confront an issue which we have recognized but have not been compelled to address until now: whether the scope of 42 U.S.C. § 1985(3) is sufficiently broad to protect" }, { "docid": "10488262", "title": "", "text": "is motivated by some class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. “Animus” means a motive or intent to interfere with the exercise of a right; not hostility, ill-will or personal animosity. Id. at 102 n. 10, 91 S.Ct. at 1798 n. 10; Terry, 886 F.2d at 1359-60. While the Supreme Court has thus far declined to rule on whether § 1985(3) reaches conspiracies directed against a class identified by characteristics other than race, United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 836, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) (“close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans.”); Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9, the Second Circuit in Terry expressly held that women seeking abortions constitute, a protected class for purposes of § 1985(3). Terry, 886 F.2d at 1359. In this case, plaintiffs have proven, by a preponderance of the evidence, that defendants engaged in a conspiracy to prevent women from obtaining access to plaintiffs’ health care facilities. Project Rescue literature encourages participants to gather in front of clinics and block or impede access to them. Defendants agreed between themselves and with others to engage in unlawful activity such as trespassing and harassment. The conspiracy has an official spokesperson and designated leaders. Project Rescue reimburses members for costs incurred in furtherance of the conspiracy. This concerted effort clearly demonstrates the presence of a conspiracy to engage in an unlawful activity. It is clear under Terry that defendants have the requisite class-based animus. There is uncontroverted evidence that defendants are opposed to the constitutional right of a woman to choose to have an abortion and that the object of their “rescue” activities is to hinder or prevent wom en — a group that is a protected class under § 1985(3) — from exercising that right. In sum, it is apparent that defendants are acting within the scope of § 1985(3) by: (1) engaging in a conspiracy; (2)" } ]

[ { "docid": "10229922", "title": "", "text": "BUTZNER, Circuit Judge: The plaintiffs, black faculty members and students of Virginia State College and black high school students, complain that Virginia is still operating a racially identifiable dual system of higher educa tion and that escalation of predominantly white Richard Bland College from a two-year institution to a four-year college will frustrate the efforts of its neighbor, predominantly black Virginia State College, to desegregate. They seek to enjoin the escalation of Bland, to require its ultimate merger with Virginia State and to require state officials to prepare a plan for the desegregation of every state supported college and university in Virginia. Named as defendants are the Governor of Virginia, the State Council of Higher Education, the Board of Visitors of the College of William and Mary, the President of Richard Bland College, and the Board of Visitors of Virginia State College. Because the suit challenges the constitutionality of the Appropriations Act of 1970, ch. 461, Item 600, p. 754 (Acts of Assembly 1970), which provides for the escalation of Bland, the Attorney General of Virginia representing the Governor and the Council, moved for a three-judge court pursuant to 28 U.S.C. § 2281. His motion was granted, and the plaintiffs’ subsequent motion to dissolve the court is denied. Alabama State Teachers Ass’n v. Alabama Public School and College Auth., 289 F.Supp. 784 (M.D.Ala. 1968), aff’d mem., 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). We hold that the provisions of Item 600 for Bland’s escalation violate the 14th amendment because they serve to perpetuate a state supported racially identifiable dual system of higher education, Consequently, the Board of Visitors of the College of William and Mary and the President of Richard Bland College will be enjoined from escalating Bland. We deny the other relief which the plaintiffs seek. Prior to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Virginia’s constitution and statutes required all state supported institutions of higher learning to be racially segregated. The state operated two Negro undergraduate colleges, Norfolk State and Virginia State, and it appropriated funds for" } ]

[ { "docid": "6285678", "title": "", "text": "South, 69 Colum.L.Rev. 112 (1969); Desegregation-College’s Duty to Take Affirmative Action to Integrate Beyond the Institution of a Non-Discriminatory Admissions Policy, 4 Harv. Civ.Rights — Civ.Lib.L.Rev. 443 (1969). The one article dealing with Norris found its requirements distinctly preferable to those of ASTA. See Comment, Integrating Higher Education: Defining the Scope of the Affirmative Duty to Integrate, 57 Iowa L.Rev. 898 (1972). . The findings of the district court in this regard were similar to that of the court in Norris, supra, which stated: [0]ne agency of the state, Bland [the white college], cannot impede another agency of the state, Virginia State [the black college], in its efforts to fully integrate its student body. 327 F.Supp. at 1373. . “No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.” 418 U.S. at 741-42, 94 S.Ct. at 3125, 3126. (citation omitted). ENGEL, Circuit Judge, dissenting. I respectfully dissent. In my opinion the ordered remedy of a merger of the University of Tennessee-Nashville (UT-N) and Tennessee State University (TSU) is violative of the principles set forth in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Miiliken I), because it goes beyond the constitutional wrong found to have been committed by the University of Tennessee (UT) and, equally important, because it tends to strengthen rather than eliminate segregation in higher education in Tennessee. The controlling truths in this case are readily apparent. Historically the public institutions of higher education in Tennessee were segregated by law. Black students were not admitted to UT and white students were not admitted to TSU. The faculty at UT was white and the faculty at TSU was black. Comparable segregation existed in the administrative staffs. Until this litigation began in 1968, both UT and TSU remained identifiable by race on the levels of faculty, administration and student body. While the district court reports that satisfactory progress has been made" }, { "docid": "6285677", "title": "", "text": "in close proximity to TSU has impeded the progress of desegregating TSU and of dismantling the dual system; (5) the district court did not exceed its equitable power or impose an inappropriate remedy in ordering merger of UT-N and TSU under the governing authority of SBR. The judgment of the district court is affirmed on the appeals of the UT Board and THEC. No costs allowed. . Compulsory racial segregation in all Tennessee institutions of higher learning was first mandated by Article 11, § 12 of the Tennessee Constitution of 1870. In 1901 Tennessee became the first state to enact criminal statutes requiring racial segregation in all public and private colleges. 49 Tenn.Code Ann. §§ 3701-3 [Unconstitutional]. . The commentators who have dealt with this subject have uniformly concluded that ASTA was too restrictive in dealing with the affirmative duty to remove vestiges of a state-imposed dual system of public higher education. See Note, The Affirmative Duty to Integrate in Higher Education Note, 79 Yale L.J. 666-697 (1970); Note, Integration of Higher Education in the South, 69 Colum.L.Rev. 112 (1969); Desegregation-College’s Duty to Take Affirmative Action to Integrate Beyond the Institution of a Non-Discriminatory Admissions Policy, 4 Harv. Civ.Rights — Civ.Lib.L.Rev. 443 (1969). The one article dealing with Norris found its requirements distinctly preferable to those of ASTA. See Comment, Integrating Higher Education: Defining the Scope of the Affirmative Duty to Integrate, 57 Iowa L.Rev. 898 (1972). . The findings of the district court in this regard were similar to that of the court in Norris, supra, which stated: [0]ne agency of the state, Bland [the white college], cannot impede another agency of the state, Virginia State [the black college], in its efforts to fully integrate its student body. 327 F.Supp. at 1373. . “No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.” 418 U.S. at 741-42, 94 S.Ct. at 3125, 3126. (citation omitted). ENGEL," }, { "docid": "6285921", "title": "", "text": "position that the district court was permitted to weigh this testimony as any other, and was not required to accept the conclusions of the witness. Ill The district court’s approach to the statewide aspects of the long range plan must be viewed in proper perspective. From the beginning of this litigation the district court looked upon the situation in Nashville involving TSU and UT-N as “the heart” of the problem of segregated public higher education in Tennessee. The court and the original plaintiffs proceeded on the premise that the essential first step in achieving a unitary system must occur in Nashville. Sanders v. Ellington, 288 F.Supp. 937, 942-43 (M.D.Tenn.1968). There had been virtually no progress by 1968 in desegregating TSU, and the expansion of UT-N ultimately was found to be a deterrent to any hope of attracting a white presence to TSU. Geier v. Blanton, supra, 427 F.Supp. at 652-53. At the same time that TSU remained overwhelmingly black many of the traditionally white institutions were making some progress in desegregating their faculties and student bodies. Thus, while the rest of the system was not ignored, the focus of the court was clearly on Nashville. Nevertheless, when a situation outside Nashville which threatened the progress of desegregation was brought to the court’s attention, it acted with dispatch. On June 20, 1973 the district court, in the present case on the motion of appellants herein, enjoined construction of a community college campus in a predominantly white section of Shelby County and directed that a mid-town Memphis campus be developed first. The court found that the prospects were good for a reasonable racial balance in the student body at the mid-town site whereas a school at the old county penal farm would be overwhelmingly white. The approach of the district court to this complicated case was to require steady progress statewide while concentrating on the areas where local conditions or actions presented identifiable obstacles to the required dismantling of Tennessee’s dual system of public higher education. This was a reasonable procedure. In determining that the long range plan was constitutionally adequate Judge" }, { "docid": "20825350", "title": "", "text": "law which this court must follow in the instant case, given these two apparently diametrically opposed results, each of which was affirmed summarily by the Supreme Court? A further analysis of the ASTA opinion yields the answer to this question, and such analysis is here in order. It should be noted at the outset that ASTA expressly recognizes the existence of “the affirmative duty to dismantle the dual school system on the college level.” ASTA 289 F.Supp. at 789. Clearly, then, ASTA does not stand for the proposition that a state is under no affirmative duty to dismantle a dual system of higher education in those cases where such a system is a vestige of de jure seggregation. This court is thus of the opinion that Norris is correct in stating that, while “[t]he means of eliminating discrimination in public schools necessarily differ from its elimination in colleges, . . . the state’s duty is as exacting.” Norris 327 F.Supp. at 1373 (emphasis added). With the foregoing points in mind, this court feels that the key to the ASTA result can be found in the following language: “Plaintiffs fail to take account of some significant differences between the elementary and secondary public schools and institutions of higher education and of some related differences concerning the role the courts should play in dismantling the dual systems. Public elementary and secondary schools are traditionally free and compulsory. Prior to ‘freedom of choice,’ children were assigned to their respective schools. This could be done with equanimity because, in principle at least, one school for a given grade level is substantially similar to another in terms of goals, facilities, course offerings, teacher training and salaries, and so forth. In this context, although reluctant to intervene, when the Constitution and mandates from the higher courts demanded it, we felt that desegregation could be accomplished, and that the requirements of the law would be met, without our being involved in a wide range of purely educational policy decisions. Accordingly, we felt, in dealing with the problem of desegregating the elementary and secondary public schools, that we" }, { "docid": "6285640", "title": "", "text": "the only feasible means of dismantling the dual system and specifically requested that TSU be given exclusive control of all public higher education in metropolitan Nashville. It was proposed that UT-N would eventually become the evening center of TSU. On February 23, 1973 the district court granted leave to the plaintiffs Richardson et al. to intervene. The complaint of the intervening plaintiffs addressed the issues somewhat differently than the complaints of both the original plaintiffs and the United States. It sought an injunction barring discrimination against black students, faculty and staff in the adoption and implementation of a desegregation plan, criticized the current plan for requiring an increase in white faculty at TSU without a concomitant increase in black faculty members in the University of Tennessee system and for increasing aid to white students attending TSU without taking steps to increase access of black students to higher education generally. The intervening complaint expressed a concern that plans formulated by the defendants would result in a decrease in the influence and strength of TSU without providing increased opportunities to black students for higher education at the previously all-white institutions. It particularly opposed any plan which would result in TSU being placed under the control of “white persons who are antagonistic to black aspirations.” The complaint sought an order directing the adoption and implementation of a plan which would effectively dismantle the dual system of public higher education. A report filed by the defendants on February 14, 1974 showed, steady, if slow, progress in increasing the enrollment of black students and the employment of black faculty members at the formerly all-white institutions throughout the state. Though some desegregation of the faculty and student body at TSU was reported, the court found that progress toward dismantling the dual system in Nashville had been minimal under the 1969 plan and the defendants were ordered to produce a new interim plan. Meanwhile the court did order exclusive allocation to TSU of graduate studies in education in an effort to determine the effectiveness of such an approach. On July 5,1974 the court entered an order generally" }, { "docid": "20825349", "title": "", "text": "227, 30 L.Ed.2d 180 (1971) (memorandum). In Norris, the relief granted was substantially similar to that which was denied in ASTA. The Norris plaintiffs sought to enjoin the escalation of a predominantly white junior college to a four-year college on the ground that such escalation would “. . . frustrate the efforts of its neighbor, predominantly black Virginia State College, to desegregate.” Norris at 1369. The defendants contended that the ASTA conclusion, as quoted above, was the “controlling law of the case.” To this contention, the Norris court replied: “We cannot subscribe to the proposition that the Supreme Court represented in a one sentence memorandum decision that it approved every statement in the district court’s opinonjb. The rule is appropriate for the resist reached in Alabama State Teachers Ass’n, but removed from its context, it does not furnish a universal definition of a state’s obligation to abolish a racially dual system of higher education.” Norris 327 F.Supp. at 1372. And, upon this basis, the court went on to grant the injunction. What, then, is the law which this court must follow in the instant case, given these two apparently diametrically opposed results, each of which was affirmed summarily by the Supreme Court? A further analysis of the ASTA opinion yields the answer to this question, and such analysis is here in order. It should be noted at the outset that ASTA expressly recognizes the existence of “the affirmative duty to dismantle the dual school system on the college level.” ASTA 289 F.Supp. at 789. Clearly, then, ASTA does not stand for the proposition that a state is under no affirmative duty to dismantle a dual system of higher education in those cases where such a system is a vestige of de jure seggregation. This court is thus of the opinion that Norris is correct in stating that, while “[t]he means of eliminating discrimination in public schools necessarily differ from its elimination in colleges, . . . the state’s duty is as exacting.” Norris 327 F.Supp. at 1373 (emphasis added). With the foregoing points in mind, this court feels that the" }, { "docid": "6285644", "title": "", "text": "10 to 12.2 per cent in the same period. Little progress was reported in the desegregation of faculty and administrators in the Nashville area and details were given of cooperative and joint educational programs which were being undertaken at UT-N and TSU. On the basis of this latest report the defendants filed a motion for summary judgment, arguing that the duty to dismantle the dual system of public higher education in Tennessee had been fulfilled. The court noted several “instances of little or no progress” and denied the motion for summary judgment. Instead, the case was set for trial. Evidence was heard over a period of approximately one month involving 20 trial days. D. The Judgment Appealed from and the 1977 Opinion Following the hearing the district court entered a judgment directing that merger of UT-N and TSU be completed within three years from July 1, 1977. In his opinion accompanying this judgment, reported as Geier v. Blanton, 427 F.Supp. 644 (M.D. Tenn.1977), Judge Gray reviewed in detail the history of the litigation. He noted the failure of the institutions to reach agreement on joint and cooperative program allocation and found that the only significant results had been achieved in the area of graduate studies in education which the court had directed be allocated exclusively to TSU. No cooperative programs had been attempted at that time and the exclusive programs which were assigned on the basis of time of day taught (daytime at TSU and after 4:00 p. m. at UT-N) remained overwhelmingly or predominantly reflective of the racial makeup of the campus where they were taught. The court found that the joint degree program in general engineering was an admitted failure and the prospects were poor for success of a joint masters program in public administration. The court also remarked on the fact that a significant part of the increase in white enrollment at TSU was in off-campus programs and that actual white enrollment on the campus at TSU was only 7 per cent. In assessing the hope for future improvements in the Nashville area under the long range" }, { "docid": "673309", "title": "", "text": "entered a Memorandum Opinion and Order, in which it concluded that the traditionally white institutions were “proceeding to dismantle their dual system of higher education, taken as a state-wide whole, at a constitutionally-permissible rate of speed,” but that the TSU “phenomenon” remains. Geier v. Dunn, 337 F.Supp. 573, 580 (M.D.Tenn.1972). In regard to TSU the Court found: “First, the approach heretofore adopted by the state has not worked and, indeed, appears to contain no prospect of working. Second, the constitutional violation which-the present racial composition of that institution [TSU] constitutes is of a severe and egregious nature.” Id., at 581. The Court ordered the defendants to submit to the Court by March 15, 1972, “a plan . to provide, as a minimum, for the substantial desegregation of the faculty at TSU and the allocation to the campus of TSU of programs which will ensure [emphasis in original], in the opinion of defendants, a substantial ‘white presence’ on the campus.” The Court further ordered the defendants to consider additional methods to desegregate TSU and to report such additional methods to the Court by August 1, 1972. Specifically, the Court required that the report consider the feasibility of a merger or consolidation of TSU and UT-N and the feasibility or non-feasibility of curriculum consolidation of undergraduate and graduate programs offered by the State’s colleges in the general Nashville area. Geier v. Dunn, 337 F.Supp. 573 (M.D.Tenn.1972). On March 27, 1972, following an extension, the defendants filed an interim plan for increasing the white presence on TSU’s campus, pursuant to the Court’s Order of February 3, 1972. Both the plaintiff and the plaintiff-intervenor United States filed objections to the defendants’ interim plan. The Court entered an Order, on June 15, 1972, reserving final consideration of the defendants’ interim plan proposals pending the filing of the previously ordered August 1, 1972 report. Pursuant to the Court’s Orders of February 3, 1972, as amended on March 10, 1972, and June 15, 1972, the Tennessee Higher Education Commission (hereinafter referred to as THEC), the Board of Education . and the TSU defendants filed a report, which" }, { "docid": "6285635", "title": "", "text": "the plan, showing development of more specific plans in the various areas and disclosing what progress was being made. B. The 1972 Opinion After receiving several reports the district court concluded that, while the state defendants were proceeding at a constitutionally permissible rate of speed in dismantling the dual system on a statewide basis, the 1969 plan was not effectively dealing with the Nashville problem. The memorandum opinion of the court is published as Geier v. Dunn, 337 F.Supp. 573 (M.D.Tenn. 1972). Finding few changes at TSU the court specifically held that a dual system of higher education which originated in the state law requiring separation of the races is not dismantled as long as one overwhelmingly black state institution remains surrounded by predominantly white state institutions. Judge Gray concluded that the reports which he had received indicated that the approach to the problem advocated in the original state plan was not working and showed no prospect of working. He therefore ordered that a new plan be formulated which would specifically involve allocation of programs to TSU which would guarantee a substantial “white presence” at that institution and would desegregate its faculty. The defendants were also directed to explore and report on the feasibility of merger of TSU and UT — N among other possibilities. Id. at 581. In the course of his opinion Judge Gray discussed ASTA and the later opinion of a three-judge court in Norris v. State Council of Higher Education for Virginia (hereafter Norris), 327 F.Supp. 1368 (E.D.Va.), aff’d per curiam sub nom. Board of Visitors of the College of William & Mary in Virginia v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971). In Norris the district court enjoined the “escalation” of predominantly white Richard Bland College in the same community where traditionally black Virginia State College had been operated since 1882. Although the Norris court sought to distinguish ASTA, its basic holding was that the duty of a state to dismantle a dual system of higher education resulting from previous requirements for separation of the races is the same as the" }, { "docid": "6285639", "title": "", "text": "academic structure of UT-N. The court ordered that this plan be implemented immediately as satisfaction of the “initial minimum duty” of the defendants. Thereafter the district court received several reports, none of which indicated any significant success in Nashville. Though UT-N was attracting more black students than previously, there was little improvement in the number of white students studying on- campus at TSU. The UT Board and THEC tended to blame this situation on alleged inferiority of TSU and they suggested a task force to recommend improvements at that institution. TSU disagreed with much of what was contained in these reports, contending that UT-N offered direct competition for white students in the Nashville area who were most likely to provide future growth for TSU. The THEC report of July 15, 1972 concluded that the merger of TSU and UT-N was not feasible at that time, but acknowledged that merger might be required in the future. TSU filed a response to the plan put forward by the state defendants in which it strongly urged merger as the only feasible means of dismantling the dual system and specifically requested that TSU be given exclusive control of all public higher education in metropolitan Nashville. It was proposed that UT-N would eventually become the evening center of TSU. On February 23, 1973 the district court granted leave to the plaintiffs Richardson et al. to intervene. The complaint of the intervening plaintiffs addressed the issues somewhat differently than the complaints of both the original plaintiffs and the United States. It sought an injunction barring discrimination against black students, faculty and staff in the adoption and implementation of a desegregation plan, criticized the current plan for requiring an increase in white faculty at TSU without a concomitant increase in black faculty members in the University of Tennessee system and for increasing aid to white students attending TSU without taking steps to increase access of black students to higher education generally. The intervening complaint expressed a concern that plans formulated by the defendants would result in a decrease in the influence and strength of TSU without providing" }, { "docid": "673308", "title": "", "text": "significant increase in the number of white faculty at TSU (10 to 11); and that the defendants had failed to reach an agreement bn the proposed joint UT-N-TSU engineering program. Subsequently, on June 14, 1971, the defendants filed another report showing that, while some more limited progress had been made by most of the predominantly white institutions in recruiting minority students, officials at the predominantly white institutions had not made any real progress in attracting black faculty. The report further showed that TSU was still overwhelmingly black with its percentage of 99.7 percent black undergraduates and 99.9 percent black freshman during the academic year 1970-1971, but that the State placed some hope for progress in a joint engineering program between UT — N and TSU and a cooperative effort with UT-N, TSU, and Middle Tennessee State University (MTSU) for the Specialist in Education degree, which programs had been agreed upon by the relevant institutions. Following a hearing on the progress, or lack thereof, evidenced by the reports summarized above, on February 3, 1972, the Court entered a Memorandum Opinion and Order, in which it concluded that the traditionally white institutions were “proceeding to dismantle their dual system of higher education, taken as a state-wide whole, at a constitutionally-permissible rate of speed,” but that the TSU “phenomenon” remains. Geier v. Dunn, 337 F.Supp. 573, 580 (M.D.Tenn.1972). In regard to TSU the Court found: “First, the approach heretofore adopted by the state has not worked and, indeed, appears to contain no prospect of working. Second, the constitutional violation which-the present racial composition of that institution [TSU] constitutes is of a severe and egregious nature.” Id., at 581. The Court ordered the defendants to submit to the Court by March 15, 1972, “a plan . to provide, as a minimum, for the substantial desegregation of the faculty at TSU and the allocation to the campus of TSU of programs which will ensure [emphasis in original], in the opinion of defendants, a substantial ‘white presence’ on the campus.” The Court further ordered the defendants to consider additional methods to desegregate TSU and to report" }, { "docid": "6285641", "title": "", "text": "increased opportunities to black students for higher education at the previously all-white institutions. It particularly opposed any plan which would result in TSU being placed under the control of “white persons who are antagonistic to black aspirations.” The complaint sought an order directing the adoption and implementation of a plan which would effectively dismantle the dual system of public higher education. A report filed by the defendants on February 14, 1974 showed, steady, if slow, progress in increasing the enrollment of black students and the employment of black faculty members at the formerly all-white institutions throughout the state. Though some desegregation of the faculty and student body at TSU was reported, the court found that progress toward dismantling the dual system in Nashville had been minimal under the 1969 plan and the defendants were ordered to produce a new interim plan. Meanwhile the court did order exclusive allocation to TSU of graduate studies in education in an effort to determine the effectiveness of such an approach. On July 5,1974 the court entered an order generally approving an interim plan produced by THEC. On July 31, 1974 both the UT Board defendants and the intervening plaintiffs Richardson et al. filed proposed plans. The intervening plaintiffs proposed merger of UT-N into TSU. Their plan also required the appointment of black administrators at executive levels throughout the higher education system of Tennessee and set much higher goals for employment of black faculty members at various institutions than were set in any of the other proposals. The proposal of the defendants which they denominated a “Long Range Plan” set forth goals and implementation procedures for additional desegregation of the various institutions. This plan was jointly developed by the UT Board, THEC and SBR. The United States filed a detailed response and objections to the long range plan in which it took the position that the plan offered ho prospect for achieving meaningful desegregation in Nashville. The United States urged the court to adopt a program requiring merger of UT-N into TSU by phasing out UT-N and transferring all programs to TSU as the most" }, { "docid": "6285631", "title": "", "text": "colleges and universities had been formally abolished and that all were operating under an “open-door policy.” However, the court further found that “the dual system of education created originally by law has not been effectively dismantled.” Id. at 940. In denying an injunction against expansion of UT — N the district court specifically found that there was nothing in the record to indicate that the University of Tennessee had any intention of making its Nashville center a degree-granting day institution. On this basis the court found that the proposed expansion of UT-N would not necessarily perpetuate a dual system of public higher education. One of the primary arguments of the state defendants before the district court was that they had discharged their constitutional duty to desegregate higher education in Tennessee by removing all racial requirements for admission to the various institutions and adopting an “open-door” admissions policy. This argument relied primarily on the opinion of Chief Judge Frank M. Johnson, Jr. in the three-judge case of Alabama State Teachers Association v. Alabama Public School and College Authority (hereafter referred to as ASTA, 289 F.Supp. 784 (M.D.Ala.1968), aff’d per curiam, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). In ASTA the court declined to enjoin construction of a four-year, degree-granting extension of Auburn University in Montgomery where the state operated the all-black Alabama State College. In ASTA the court noted the fundamental differences between compulsory free education at elementary and secondary levels and higher education which is elective and requires payments by students, and held that the “basic requirement” of the affirmative duty to dismantle a dual system of higher education is met when good faith is exercised in dealing with admissions, faculty and staff. 289 F.Supp. at 789-90. In his opinion Judge Gray stated specifically that he was not basing his denial of an injunction against expansion of UT — N on the holding in ASTA. Citing holdings of the Supreme Court of the United States, particularly Green v. County School Board, 391 U.S. 430, 88 S.Ct. 168, 20 L.Ed.2d 716 (1968), Judge Gray found that the open" }, { "docid": "6285636", "title": "", "text": "to TSU which would guarantee a substantial “white presence” at that institution and would desegregate its faculty. The defendants were also directed to explore and report on the feasibility of merger of TSU and UT — N among other possibilities. Id. at 581. In the course of his opinion Judge Gray discussed ASTA and the later opinion of a three-judge court in Norris v. State Council of Higher Education for Virginia (hereafter Norris), 327 F.Supp. 1368 (E.D.Va.), aff’d per curiam sub nom. Board of Visitors of the College of William & Mary in Virginia v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971). In Norris the district court enjoined the “escalation” of predominantly white Richard Bland College in the same community where traditionally black Virginia State College had been operated since 1882. Although the Norris court sought to distinguish ASTA, its basic holding was that the duty of a state to dismantle a dual system of higher education resulting from previous requirements for separation of the races is the same as the duty to dismantle a dual system of public elementary and secondary education. As Judge Butzner wrote in Norris, the means of eliminating discrimination are necessarily different when dealing with different levels of education, but “the state’s duty is as exacting” in one as in the other. 327 F.Supp. at 1373. In analyzing ASTA and Norris Judge Gray found both to be consistent with teachings of Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), that the scope of an equity court’s power is broad and flexible once a violation of the Constitution has been found and that the court must engage in a balancing of the interests of individuals and those of society, with the nature of the violation determining the scope of the remedy. Applying these principles the district court in the present case recognized the significant interests of the State in setting its educational policies and concluded that Tennessee had met the basic requirement of the Constitution in establishing open admissions accompanied by good faith recruiting efforts." }, { "docid": "6710240", "title": "", "text": "is so, but in that sense nearly every existing institution is “identifiable.” ... Plaintiffs’ contention that inadequate attention was given to desegregation is also based on defendants’ failure to give serious consideration to expanding Alabama State ... as an alternative to establishing the Auburn branch. But this argument overlooks the fact that Alabama State is at least as identifiably “black” as Auburn is identifiably “white.” In terms of eliminating the dual school system, one label is no more preferable than the other. We thus reject plaintiffs’ conclusion that, when the new college is put into operation, Montgomery will have two colleges — one [black], one white. ... It is certainly as reasonable to conclude that a new institution will not be a white school or a [black] school, but just a school as it is to believe that Alabama State would so evolve. Much of the above discussion is based on speculation; this is necessarily true because much of plaintiffs’ argument is based on speculation. However, the discussion does serve to show that in the discharge of the duty to maximize desegregation, the Auburn branch is at least arguably as acceptable as any alternative proffered by plaintiffs. We conclude, therefore, that as long as the State and a particular institution are dealing with admissions, faculty and staff in good faith the basic requirement of the affirmative duty to dismantle the dual school system on the college level, to the extent that the system may be based upon racial considerations, is satisfied. ASTA, 289 F.Supp. at 788-790. 467. Based on this reasoning, the court concluded that Alabama Act No. 403 was constitutional on its face and as applied. 468. The ASTA plaintiffs appealed the decision to the United States Supreme Court which summarily affirmed the decision per curiam. Justice Douglas in dissenting from the decision observed: Can we say in 1969 that a State has no duty to disestablish a dual system of higher education based upon race? The three-judge court in a careful opinion seems to draw a line between elementary and secondary schools on the one hand and colleges" }, { "docid": "20825348", "title": "", "text": "its holding: “We conclude, therefore, that as long as the State and a particular institution are dealing with admissions, faculty and staff in good faith the basic requirement of the affirmative duty to dismantle the dual school system on the college level, to the extent that the system may be based upon racial onsiderations, is satisfied.” ASTA, 289 F.Supp. at 789, 790. To determine whether the affirmance of ASTA, in the summary manner in which it was effected, did or did not constitute approval of the “conclusion” quoted above, it is necessary to analyze the case in some detail, in the light of the effect upon the area of the law herein under consideration of a second three-judge court decision, apparently in direct conflict with ASTA, which also was summarily affirmed by the Supreme Court of the United States — namely, Norris v. State Council of Higher Education, 327 F.Supp. 1368 (E.D.Va.1971) (Hoffman, J., dissenting), aff’d. sub nom Board of Visitors of the College of William and Mary in Virginia, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971) (memorandum). In Norris, the relief granted was substantially similar to that which was denied in ASTA. The Norris plaintiffs sought to enjoin the escalation of a predominantly white junior college to a four-year college on the ground that such escalation would “. . . frustrate the efforts of its neighbor, predominantly black Virginia State College, to desegregate.” Norris at 1369. The defendants contended that the ASTA conclusion, as quoted above, was the “controlling law of the case.” To this contention, the Norris court replied: “We cannot subscribe to the proposition that the Supreme Court represented in a one sentence memorandum decision that it approved every statement in the district court’s opinonjb. The rule is appropriate for the resist reached in Alabama State Teachers Ass’n, but removed from its context, it does not furnish a universal definition of a state’s obligation to abolish a racially dual system of higher education.” Norris 327 F.Supp. at 1372. And, upon this basis, the court went on to grant the injunction. What, then, is the" }, { "docid": "6285634", "title": "", "text": "terms. This plan treated the identifiably white institutions and TSU separately. It proposed that the white schools attempt to increase the black presence on their campuses by recruiting at identifiably black high schools, setting aside “certain amounts” for aid to black students and establishing programs which encouraged participation of black people on their campuses. Increased recruitment of black faculty members was also recommended. It was suggested that TSU seek white high school students with an integrated recruiting team, that it institute programs for high school pupils of both races and recruit white faculty members, and that it improve its campus and develop programs which would appeal to students of both races. The plan also proposed that there be joint academic programs between TSU and UT— N, including joint course planning and faculty appointments, easy access and transfer of credits and joint degree programs. After consideration, the district court entered an order in which it neither approved nor disapproved the plan because it lacked specificity. The court directed that the defendants report on éach recommendation in the plan, showing development of more specific plans in the various areas and disclosing what progress was being made. B. The 1972 Opinion After receiving several reports the district court concluded that, while the state defendants were proceeding at a constitutionally permissible rate of speed in dismantling the dual system on a statewide basis, the 1969 plan was not effectively dealing with the Nashville problem. The memorandum opinion of the court is published as Geier v. Dunn, 337 F.Supp. 573 (M.D.Tenn. 1972). Finding few changes at TSU the court specifically held that a dual system of higher education which originated in the state law requiring separation of the races is not dismantled as long as one overwhelmingly black state institution remains surrounded by predominantly white state institutions. Judge Gray concluded that the reports which he had received indicated that the approach to the problem advocated in the original state plan was not working and showed no prospect of working. He therefore ordered that a new plan be formulated which would specifically involve allocation of programs" }, { "docid": "6285633", "title": "", "text": "admissions policy which the State of Tennessee had instituted did not discharge the affirmative duty imposed by the Fourteenth Amendment to dismantle a dual system of higher education in a situation where that policy had produced “no genuine progress toward desegregation and no genuine prospect of progress.” 288 F.Supp. at 942. The court then ordered the state defendants to submit a plan “designed to effect such desegregation of the higher educational institutions of Tennessee, with particular attention to Tennessee A & I State University [the former name of TSU] as to indicate the dismantling of the dual system now existing.” Id. The district court found it clear from the record “that the failure to make A & I a viable, desegregated institution in the near future is going to lead to its continued deterioration as an institution of higher learning.” Id. at 943. In obedience to the court’s order the state defendants filed a plan on April 1, 1969 which was little more than a recommendation for a series of actions, described in very general terms. This plan treated the identifiably white institutions and TSU separately. It proposed that the white schools attempt to increase the black presence on their campuses by recruiting at identifiably black high schools, setting aside “certain amounts” for aid to black students and establishing programs which encouraged participation of black people on their campuses. Increased recruitment of black faculty members was also recommended. It was suggested that TSU seek white high school students with an integrated recruiting team, that it institute programs for high school pupils of both races and recruit white faculty members, and that it improve its campus and develop programs which would appeal to students of both races. The plan also proposed that there be joint academic programs between TSU and UT— N, including joint course planning and faculty appointments, easy access and transfer of credits and joint degree programs. After consideration, the district court entered an order in which it neither approved nor disapproved the plan because it lacked specificity. The court directed that the defendants report on éach recommendation in" }, { "docid": "6285632", "title": "", "text": "College Authority (hereafter referred to as ASTA, 289 F.Supp. 784 (M.D.Ala.1968), aff’d per curiam, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). In ASTA the court declined to enjoin construction of a four-year, degree-granting extension of Auburn University in Montgomery where the state operated the all-black Alabama State College. In ASTA the court noted the fundamental differences between compulsory free education at elementary and secondary levels and higher education which is elective and requires payments by students, and held that the “basic requirement” of the affirmative duty to dismantle a dual system of higher education is met when good faith is exercised in dealing with admissions, faculty and staff. 289 F.Supp. at 789-90. In his opinion Judge Gray stated specifically that he was not basing his denial of an injunction against expansion of UT — N on the holding in ASTA. Citing holdings of the Supreme Court of the United States, particularly Green v. County School Board, 391 U.S. 430, 88 S.Ct. 168, 20 L.Ed.2d 716 (1968), Judge Gray found that the open admissions policy which the State of Tennessee had instituted did not discharge the affirmative duty imposed by the Fourteenth Amendment to dismantle a dual system of higher education in a situation where that policy had produced “no genuine progress toward desegregation and no genuine prospect of progress.” 288 F.Supp. at 942. The court then ordered the state defendants to submit a plan “designed to effect such desegregation of the higher educational institutions of Tennessee, with particular attention to Tennessee A & I State University [the former name of TSU] as to indicate the dismantling of the dual system now existing.” Id. The district court found it clear from the record “that the failure to make A & I a viable, desegregated institution in the near future is going to lead to its continued deterioration as an institution of higher learning.” Id. at 943. In obedience to the court’s order the state defendants filed a plan on April 1, 1969 which was little more than a recommendation for a series of actions, described in very general" }, { "docid": "6285637", "title": "", "text": "duty to dismantle a dual system of public elementary and secondary education. As Judge Butzner wrote in Norris, the means of eliminating discrimination are necessarily different when dealing with different levels of education, but “the state’s duty is as exacting” in one as in the other. 327 F.Supp. at 1373. In analyzing ASTA and Norris Judge Gray found both to be consistent with teachings of Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), that the scope of an equity court’s power is broad and flexible once a violation of the Constitution has been found and that the court must engage in a balancing of the interests of individuals and those of society, with the nature of the violation determining the scope of the remedy. Applying these principles the district court in the present case recognized the significant interests of the State in setting its educational policies and concluded that Tennessee had met the basic requirement of the Constitution in establishing open admissions accompanied by good faith recruiting efforts. However, the court specifically found that the adoption of this basic requirement had not resulted in significant changes at TSU and that something further was required. C. Proceedings Following 1972 Opinion The defendants then filed a plan with separate proposals for desegregating the faculty and student body at TSU. This plan called for appointment of white faculty members to fill vacancies at TSU unless there was a superior black applicant, the addition of ten non-black new faculty members at TSU to teach in areas of particular interest to white students and a faculty exchange program. The plan also proposed an increase in student aid and that a portion of it be earmarked for the recruitment of white students. In addition other efforts aimed at the recruitment of white students were proposed in general terms. Specifically, the plan called for improvement of the TSU campus, including construction of a new library and business building. The plan also provided for the transfer of a social work program to TSU physically, but did not remove it from the" } ]

[ { "docid": "17412723", "title": "", "text": "We conclude that Biamp failed to preserve this issue for appeal. As we have already discussed, Biamp’s Rule 50(a) motion failed to specifically challenge the sufficiency of ClearOne’s evidence on the “willful and malicious” issue. Moreover, at no point in Biamp’s objection to ClearOne’s motion for attorneys’ fees did Biamp argue that there was insufficient evidence to support the jury’s finding that Biamp acted willfully or maliciously. Rather, Biamp asserted that “a finding of willful or malicious trade-secret misappropriation, by itself, d[id] not render the award of fees mandatory,” JA at D19894, and it proceeded to offer various reasons why the district court should decline to award fees and costs to ClearOne. Thus, in sum, the issue has been forfeited, and Biamp makes no attempt to establish the existence of plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011). 2) Joint and several liability Biamp argues that the district court erred in imposing ClearOne’s common attorneys’ fees and related nontaxable expenses against all defendants jointly and severally. Biamp asserts that imposing attorneys’ fees jointly and severally against all defendants contravenes the ULRA’s express prohibition against joint and several awards. Biamp argues, in the alternative, that imposing joint and several liability for attorneys’ fees was improper because an attorneys’ fees award is punitive in nature and punitive damages should not be imposed jointly and severally. We conclude that Biamp failed to preserve the ULRA argument for appeal. Although Biamp, in its objection to ClearOne’s motion for attorneys’ fees, challenged the propriety of imposing ClearOne’s common attorneys’ fees and nontaxable expenses jointly and severally against all defendants, it did not argue that the ULRA barred a joint and several award. In fact, Biamp first mentioned the ULRA in its objection to the magistrate judge’s report. Even assuming, without deciding, that Biamp’s objection to the magistrate judge’s report asserted the ULRA argument, “[ijssues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chafer, 75 F.3d 1421, 1426-27 (10th Cir.1996). Thus, because Biamp failed to raise the ULRA argument to the" } ]

[ { "docid": "555552", "title": "", "text": "on many of the visits, there was no report of back pain in the records.” In addition, as noted by the magistrate judge, none of the treatment records refer to any of the “objective medical criteria required by Listing § 1.04C.” Thus, we agree with the magistrate judge that “had Dr. Olivares’ treatment notes been available to [the ALJ], [they] would not have altered her finding that Plaintiff did not establish the medical criteria necessary for a finding of disabled under Listing § 1.04C.” C. Waived Issues. As noted above, in his opening brief, Mr. Martinez argues that the second ALJ erred by failing to sufficiently develop the administrative record and by failing to perform a proper residual functional capacity assessment. However, because Mr. Martinez failed to raise these issues in the objections that he filed to the magistrate judge’s recommended disposition, the issues are waived. Accordingly, we do not need to consider them. See Berna v. Chafer, 101 F.3d 631, 632-33 (10th Cir.1996); Soliz v. Chafer, 82 F.3d 373, 375-76 (10th Cir.1996). Moreover, we see no reason for excusing Mr. Martinez’s waiver based on the interests of justice. See Soliz 82 F.3d at 376. The judgment of the district court is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument." }, { "docid": "22117152", "title": "", "text": "(RFC) to perform limited light and sedentary work. Specifically, the ALJ found that plaintiffs ability to do light and sedentary work was restricted by the following nonexertional limitations: limited fine finger manipulation in the left hand, limited feeling in both hands, inability to manipulate small objects, and mental impairments that necessitated simple, repetitive, unskilled work. The ALJ concluded that plaintiff could no longer do his past relevant work, which had required heavy exertion, but that he could perform a variety of light and sedentary jobs that exist in significant numbers in the national economy. The Appeals Council denied plaintiffs petition for review, thereby making the ALJ’s decision the final decision of the Commissioner, and the district court subsequently affirmed the denial of benefits. Plaintiff now appeals to this court, arguing that (1) the ALJ’s RFC assessment is not supported by substantial evidence; (2) the ALJ’s credibility findings are neither linked to, nor supported by, specific evidence in the record; and (3) the ALJ failed to include all of plaintiffs impairments in his hypothetical questions to the vocational expert (VE). We review the Commissioner’s decision to determine whether it is supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.1996) (quotations omitted). In conducting our review, we may neither reweigh the evidence nor substitute our judgment for that of the Commissioner. See Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). The ALJ’s RFC Assessment Plaintiff first challenges the ALJ’s RFC assessment on the ground that “[t]he Administrative Law Judge’s finding that the Appellant can perform a full range of light or sedentary work on a sustained, consistent basis is simply not based on substantial evidence.” Appellant’s Br. at 27. This argument is based on a misrepresentation of the record and is clearly without merit. The ALJ did not find that plaintiff could perform a full range of" }, { "docid": "15406306", "title": "", "text": "to assess the credibility of the claimant and other witnesses.” Bates, 54 F.3d at 532 (citations omitted). III. Analysis Baldwin raises two main arguments on appeal. Baldwin first argues that the ALJ improperly assessed his RFC because the ALJ did not cite medical evidence to support the RFC assessment and failed to properly develop the record with reports from additional consultative medical exams. Second, Baldwin argues that the decision is not supported by substantial evidence because the ALJ relied on the erroneously-determined RFC assessment to deny benefits at step five of the sequential evaluation. A. Development and Determination of RFC Baldwin claims that the ALJ did not sufficiently develop the record with medical evidence in the form of additional consultative examinations. As such, Baldwin argues, the ALJ’s RFC determination was not based upon proper medical evidence. Specifically, Baldwin asserts that the existing medical evidence that the ALJ used to assess his RFC did not provide necessary functional conclusions about his RFC. We disagree. When determining whether a claimant can engage in substantial employment, an ALJ must consider the combination of the claimant’s mental and physical impairments and determine the claimant’s RFC. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir.2000). A claimant’s RFC is what he or she can do despite his or her limitations. 20 C.F.R. § 404.1545. It is the claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s RFC. Pearsall, 274 F.3d at 1218. The ALJ must determine the claimant’s RFC based on all relevant evidence, including medical records, observations of treating physicians and others, and claimant’s own descriptions of his limitations. Id.; Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995). Although the ALJ “bears the primary responsibility for assessing a claimant’s residual functional capacity based on all relevant evidence,” Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir.2000), we have also stated that a “claimant’s residual functional capacity is a medical question,” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.2001). “[S]ome medical evidence,” Dykes v. Apfel, 223 F.3d 865, 867 (8th" }, { "docid": "22297873", "title": "", "text": "reserving their full panoply of contentions for the trial court.” Reciprocal Exch. v. Noland, 542 F.2d 462, 464 (8th Cir.1976). Other courts of appeals have held in the context of a social security case that a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review. See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) (issues first raised in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988) (Magistrates Act not “intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled in part on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987) (per curiam) (“Parties must take before the magistrate, ‘not only their best shot but all of their shots.’ ”) (internal quotation marks and citation omitted). To hold otherwise would allow a claimant to raise new claims to the district court and thus effectively have two opportunities for judicial review. Accordingly, in the absence of a showing by Roberts that a manifest injustice would result from our failure to do so, we decline to address Roberts’s contention that the ALJ erred in failing to attach a completed PRTF. B. Roberts next contends that the ALJ’s determination that he retains the ability to perform a significant number of jobs within the category of sedentary and light work is not supported' by substantial evidence because the ALJ relied on the vocational expert’s response to a flawed hypo thetical question. Roberts also points out that the ALJ failed to expressly acknowledge the shifting of the burden to the Commissioner at this step of the sequential analysis. “Testimony from a vocational expert is substantial evidence only when the testimony is based on a correctly phrased hypothetical question that captures the concrete consequences of a claimant’s deficiencies.” Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir.1997). Although" }, { "docid": "2787106", "title": "", "text": "SUMMARY ORDER Plaintiff-Appellant Bruce D. Petrie (“Petrie”) appeals from a judgment of the U.S. District Court for the Northern District of New York (Sharpe, J.) affirming the decision of the Commissioner of Social Security Michael J. Astrue (“Commissioner”), and dismissing Petrie’s complaint. Petrie challenges the Commissioner’s denial of Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act, 42 U.S.C. § 301 et seq. Pursuant to 28 U.S.C. § 636(b)(1), Petrie’s case was referred to a Magistrate Judge (Bianchini, M.J.) who issued a Report and Recommendation (“R & R”) recommending that the decision of the Commissioner be affirmed. On March 19, 2010, 2010 WL 1063836, the district court adopted the R & R in its entirety and dismissed Petrie’s complaint. Petrie timely appealed on May 17, 2010. We assume the parties’ familiarity with the underlying facts and procedural history. On appeal, Petrie argues that the Administrative Law Judge (“ALJ”) failed to apply the proper legal standards in evaluating his mental impairments and his residual functional capacity (“RFC”), and in denying him DIB and SSI benefits under the Social Security Act. Petrie contends that the ALJ did not properly apply the “Treating Physician Rule,” 20 C.F.R. §§ 404.1527, 416.927, and the Psychiatric Review Technique (also called the “Special Technique”). Petrie also argues that the ALJ was required to consult a vocational expert to determine whether Petrie could perform his past work as a cook. “When considering an appeal of a disability case, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the [Commissionerj’s denial of benefits.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (internal quotation marks omitted). Our focus “ ‘is not so much on the district court’s ruling as it is on the administrative ruling.’ ” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir.1998)). We do not determine de novo whether a claimant is disabled; rather, we set aside an ALJ’s decision only where it is “based upon legal error or is not supported by substantial" }, { "docid": "22297870", "title": "", "text": "of years without any worsening of his condition. Thus, he cannot claim them as disabling.”). In January of 1995, Dr. James Moneypenny, a psychologist, administered to Roberts the Wechsler Adult Intelligence Scale-Revised, on which Roberts obtained a full scale intelligence quotient (IQ) score of 80. This score places him in the range for borderline intellectual functioning, which, according to Dr. Moneypenney’s report, does not suggest a specific learning disability. An assessment by Arkansas Rehabilitation Services in May of 1995, which was based on a battery of other intelligence tests, concluded that although Roberts was functioning within the average range of intelligence, he may have difficulty with reading, comprehending written instructions, and math, and thus require verbal direction or hands-on job training. The conclusion of the DDS physicians— that Roberts suffers deficiencies in the areas of concentration, persistence, and pace — is not inconsistent with that of the ALJ, who found that Roberts has mental impairments that would preclude him from performing work that required constant reading of instructions, complex tasks, or high levels of judgment. To the contrary, the DDS physicians concluded that Roberts could perform work in which interpersonal contact is routine but superficial and in which tasks are no more complex than those that can be learned through experience or training. Accordingly, we conclude that the ALJ’s decision is supported by substantial evidence. Additionally, Roberts urges us to reverse on procedural grounds because the ALJ failed to attach to his opinion a completed Psychiatric Review Technique Form (PRTF), which “is a standard document which generally must be completed when a claimant alleges a mental impairment.” Mapes v. Chater, 82 F.3d 259, 262 n. 8 (8th Cir.1996). The Commissioner points out that Roberts did not make this argument before the magistrate judge, and argues that Roberts therefore should be barred from presenting it for the first time on appeal. Roberts argues that because he raised the claim in his objections to the magistrate judge’s proposed findings, which are reviewed by the district court de novo, we should consider the issue to have been properly raised below. We disagree. Although" }, { "docid": "23331652", "title": "", "text": "965 (8th Cir.1996) (holding that a claimant’s failure to comply with prescribed medical treatment and a lack of significant medical restrictions is inconsistent with complaints of a disabling pain). Based on these findings, the ALJ concluded that Eichelberger’s subjective complaints of pain so debilitating as to prevent her from all types of work were not credible. Davis v. Apfel, 239 F.3d 962, 967 (8th Cir.2001) (“Allegations of pain may be discredited by evidence of daily activities inconsistent with such allegations.”). We will not substitute our opinion for that of the ALJ, who is in a better position to assess credibility. Brown v. Chater, 87 F.3d 963, 965 (8th Cir.1996). Here, the ALJ did not rely solely on Eichelberger’s lack of objective evidence of pain. Instead, citing to the Polaski factors, the ALJ determined that Eichelberger’s testimony was not credible. Under the facts of this case, we cannot say that the ALJ improperly weighed the credibility of Ei-chelberger’s subjective claims of pain. B. ALJ’s RFC Assessment Eichelberger next contends that the ALJ improperly assessed her Residual Functional Capacity (RFC). Pursuant to the Social Security Act, the Social Security Administration follows a sequential evaluation process when determining disability. See 20 C.F.R. § 416.920; see also Ramirez v. Barnhart, 292 F.3d 576, 580 (8th Cir.2002). During the five-step process, the ALJ considers (1) whether the claimant is gainfully employed, (2) whether the claimant has a severe impairment, (3) whether the impairment meets the criteria of any Social Security Income listings, (4) whether the impairment prevents the claimant from performing past relevant work, and (5) whether the impairment necessarily prevents the claimant from doing any other work. Id. If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claim ant is determined to be not disabled. Id. The fourth step in this analysis requires the ALJ to determine a claimant’s RFC. The thrust of Eichelberger’s argument is that the ALJ erred in making an RFC determination without the support of medical evidence. A disability claimant has the burden to establish her RFC. Masterson" }, { "docid": "22297872", "title": "", "text": "Roberts need not raise every argument to the Appeals Council to preserve his claims for judicial review, see Sims v. Apfel, 530 U.S. -, -, 120 S.Ct. 2080, 2084, 147 L.Ed.2d 80 (2000), it is well established that, unless a manifest injustice would result, a claim not articulated to the district court is subject to forfeit on appeal. See Craig, 212 F.3d at 437, Misner v. Chater, 79 F.3d 745, 746 (8th Cir.1996). The question, then, is whether a claimant may make arguments in his objections to a magistrate judge’s report when those arguments have been neither argued to the magistrate judge nor addressed in the judge’s report adopted by the district court, and then obtain review of them on appeal. We conclude that Roberts’s situation is tantamount to those in which a claimant raises on appeal an argument not presented to the district court. We have stated that the “purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their full panoply of contentions for the trial court.” Reciprocal Exch. v. Noland, 542 F.2d 462, 464 (8th Cir.1976). Other courts of appeals have held in the context of a social security case that a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review. See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) (issues first raised in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988) (Magistrates Act not “intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled in part on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987) (per curiam) (“Parties must take before the magistrate, ‘not only their best shot but all of their shots.’ ”) (internal quotation marks and citation omitted). To" }, { "docid": "4054953", "title": "", "text": "Mr. Allman’s objections. The district court concluded that Mr. Allman had failed to demonstrate that his headaches qualified as a severe impairment and that the ALJ had provided sufficient bases for not assigning more weight to Dr. Sun’s opinion. On appeal, Mr. All-man challenges, among other things, the district court’s findings regarding the ALJ’s determinations at steps two and four. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. I Initially, we note that Mr. Allman properly preserved for review only two of the arguments he presents on appeal. Specifically, Mr. Allman’s objections to the magistrate judge’s recommendations do not include the following general arguments made in his opening brief before us: (1) that the vocational expert’s testimony conflicts with the Dictionary of Occupational Titles, and (2) that the ALJ used the term “stable” to indicáte that Mr. Allman’s impairments were not severe. “The scope of our review ... is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal.” Berna v. Chater, 101 F.3d 631, 632 (10th Cir.1996). We have adopted a firm-waiver rule providing that the “failure to make timely objection[s]” to a magistrate judge’s recommendations “waives appellate review of both factual and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.2010) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004)). “There are two exceptions when the firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.’ ” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005) (internal quotation marks omitted)). Here, neither exception applies because Mr. Allman has counsel and he does not justify how the interests of justice compel review. Because Mr. Allman has not adequately presented these arguments to the district court, they are waived. Additionally, Mr. Allman failed to argue before the district court that the ALJ’s findings under Listing 12.05C," }, { "docid": "2738428", "title": "", "text": "discussed above, we join our sister circuits and extend this line of authority to include the principle of administrative waiver. Henceforth, issues not brought to the attention of the Appeals Council on administrative review may, given sufficient notice to the claimant, be deemed waived on subsequent judicial review. The judgment of the United States District Court for the District of New Mexico is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. . The ALJ also stated, in passing, that plaintiff could return to work as a secretary as well. However, unlike the counseling job properly considered by the ALJ, the nature and demands of plaintiff's past secretarial work were neither explored at the evidentiary hearing nor discussed in the ALJ’s decision. Thus, reliance on the latter occupation is precluded by established precedent requiring an informed comparison between past work requirements and the claimant’s functional limitations as a condition to any step-four disposition. See, e.g., Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.1993). We have therefore reviewed this case solely for the adequacy of the ALJ's determination regarding plaintiff’s ability to return to her counseling job. . We did call attention to a social security claimant’s failure to raise a due process objection to the Appeals Council in Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996), hut in subsequently holding the issue waived, we appeared to rely exclusively on the independent rule barring appellate consideration of \"[ijssues raised for the first time in objections to the magistrate judge’s recommendation.” Id. (citing only authorities enforcing latter waiver rule)." }, { "docid": "20580946", "title": "", "text": "which Henry testified to his continued and increasing back pain, lack of treatment since September 2011, and worsening vision. In February 2013, the ALJ again determined Henry was not disabled, finding that Henry’s testimony was not credible as to the severity of his symptoms and giving limited weight to the opinion of Dr. Barber that Henry could not sit for extended periods of time. After the Appeals Council declined to review the ALJ’s decision, Henry sought federal judicial review. The magistrate judge prepared a written report and recommendation (R & R), to which neither Henry nor the Commissioner objected, recommending reversal. In a brief opinion, the district court rejected the magistrate judge’s recommendation and affirmed. This appeal followed. II. Legal Standards We review de novo the legal principles upon which the ALJ relied, but we are limited to assessing whether the ALJ’s resulting decision is supported by substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.2005) (per curiam). In social security cases where “the ALJ denies benefits and the [Appeals Council] denies review, we review the ALJ’s decision as the Commissioner’s final decision.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.2001). Our review is “the same as that of the district court,” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.1996) (per curiam), meaning we neither defer to nor consider any errors in the district court’s opinion, see Syed v. Comm’r, 441 Fed.Appx. 632, 632 n. 1 (11th Cir.2011) (per curiam). The ALJ has a basic duty to develop a full and fair record. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir.1995) (per curiam). This is an onerous task, as the ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981) (internal quotation marks omitted). In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole. Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir.1985) (per curiam) (internal quotation marks omitted). Remand for further factual development of the record before the ALJ is appropriate" }, { "docid": "2434319", "title": "", "text": "was properly applied. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir.1988). Moreover, the application of a wrong legal standard is grounds for remand. See Moncrief v. Gardner, 357 F.2d 651 (5th Cir.1966). II Entitlement to Benefits A claimant is entitled to receive disability benefits when she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted ox-ean be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In evaluating whether an individual is disabled under § 423(d)(1)(A), the Commissioner must engage in a five-part sequential evaluation as set out in 20 C.F.R. § 404.1520. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir.2004). Claimant raises three issues in her request for review: (1) that the ALJ did not provide a sufficient “narrative discussion” in the RFC assessment at step four of the five-part test and did not consider a “sit/ stand option,” (Claimant’s Br. [9-1] at 17-24); (2) that the ALJ dismissed Dr. Clax-k’s opinion without adequately refuting it (id. at 25-29); and (3) that the ALJ failed to address the required regulatory factors in assessing Claimant’s credibility or adequately weigh Claimant’s testimony (id. at 29-31). The Magistrate recommended that the decision of the ALJ be affirmed. (Final Report & Recommendation [18] at 1.) Claimant makes three specific objections to the Report and Recommendation and, “[i]nstead of repeating the arguments raised in prior briefs, ... incorporates them by reference^]” requesting de novo review of Claimant’s initial brief. (Claimant’s Objections [19] at 9.) As an initial matter, the Court declines to consider de novo all of Claimant’s arguments. A district court judge is empowered, in part to encourage efficiency, to designate a magistrate judge to conduct hearings and submit proposed findings of fact and recommendations. 28 U.S.C. § 636(b)(1)(B); Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Nettles v. Wainwright, 677 F.2d 404, 406 (5th Cir.1982). Parties to a dispute upon which a Report and" }, { "docid": "4054952", "title": "", "text": "PHILLIPS, Circuit Judge. Michael Allman applied for Social Security disability benefits, claiming he could not work due to spina bifida, a shunt in his brain, chronic back pain, headaches, depression, and anxiety. An administrative law judge (ALJ) concluded that Mr. Allman’s residual functional capacity (RFC) permitted him to perform a number of jobs that exist in significant numbers in the national economy, defeating his disability claim. At step two of the applicable five-step sequential evaluation, the ALJ determined that Mr. Allman’s headaches were not a “severe impairment” within the meaning of the Social Security Act and its corresponding regulations. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.2009). Nevertheless, the ALJ discussed and considered Mr. Allman’s headaches in assessing his RFC to work. In crafting the RFC, the ALJ also gave “little weight” to the opinion of treating physician Erica Sun, D.O. Appellant’s App. vol. I at 51. After the ALJ denied his claim, the Appeals Council denied- review and the district court affirmed after adopting the magistrate judge’s report and recommendation and overruling Mr. Allman’s objections. The district court concluded that Mr. Allman had failed to demonstrate that his headaches qualified as a severe impairment and that the ALJ had provided sufficient bases for not assigning more weight to Dr. Sun’s opinion. On appeal, Mr. All-man challenges, among other things, the district court’s findings regarding the ALJ’s determinations at steps two and four. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. I Initially, we note that Mr. Allman properly preserved for review only two of the arguments he presents on appeal. Specifically, Mr. Allman’s objections to the magistrate judge’s recommendations do not include the following general arguments made in his opening brief before us: (1) that the vocational expert’s testimony conflicts with the Dictionary of Occupational Titles, and (2) that the ALJ used the term “stable” to indicáte that Mr. Allman’s impairments were not severe. “The scope of our review ... is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal.” Berna v. Chater," }, { "docid": "22297871", "title": "", "text": "To the contrary, the DDS physicians concluded that Roberts could perform work in which interpersonal contact is routine but superficial and in which tasks are no more complex than those that can be learned through experience or training. Accordingly, we conclude that the ALJ’s decision is supported by substantial evidence. Additionally, Roberts urges us to reverse on procedural grounds because the ALJ failed to attach to his opinion a completed Psychiatric Review Technique Form (PRTF), which “is a standard document which generally must be completed when a claimant alleges a mental impairment.” Mapes v. Chater, 82 F.3d 259, 262 n. 8 (8th Cir.1996). The Commissioner points out that Roberts did not make this argument before the magistrate judge, and argues that Roberts therefore should be barred from presenting it for the first time on appeal. Roberts argues that because he raised the claim in his objections to the magistrate judge’s proposed findings, which are reviewed by the district court de novo, we should consider the issue to have been properly raised below. We disagree. Although Roberts need not raise every argument to the Appeals Council to preserve his claims for judicial review, see Sims v. Apfel, 530 U.S. -, -, 120 S.Ct. 2080, 2084, 147 L.Ed.2d 80 (2000), it is well established that, unless a manifest injustice would result, a claim not articulated to the district court is subject to forfeit on appeal. See Craig, 212 F.3d at 437, Misner v. Chater, 79 F.3d 745, 746 (8th Cir.1996). The question, then, is whether a claimant may make arguments in his objections to a magistrate judge’s report when those arguments have been neither argued to the magistrate judge nor addressed in the judge’s report adopted by the district court, and then obtain review of them on appeal. We conclude that Roberts’s situation is tantamount to those in which a claimant raises on appeal an argument not presented to the district court. We have stated that the “purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate," }, { "docid": "555551", "title": "", "text": "submitted and the Appeals Council denies review. We therefore reject Mr. Martinez’s contention that the Appeals Council erred by failing to specifically discuss Dr. Olivares’ treatment records. Because the Appeals Council “considered” Dr. Olivares’ treatment records, the records are a “part of the administrative record to be considered [by this court] when evaluating [the ALJ’s] decision for substantial evidence.” O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994); accord Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.2003). We must therefore consider the entire record, including Dr. Olivares’ treatment records, in conducting our review for substantial evidence on the issues presented. Having done so, we agree with the Appeals Council that Dr. Olivares’ treatment records do not undercut the ALJ’s finding that Dr. Olivares’ opinions regarding Mr. Martinez’s back impairment are not supported by substantial evidence in the record. As noted by the district court, although the treatment records show that Dr. Olivares saw Mr. Martinez on eight occasions, “none of the treatment notes revealed an examination of his lumbar or thoracic spine, and ... on many of the visits, there was no report of back pain in the records.” In addition, as noted by the magistrate judge, none of the treatment records refer to any of the “objective medical criteria required by Listing § 1.04C.” Thus, we agree with the magistrate judge that “had Dr. Olivares’ treatment notes been available to [the ALJ], [they] would not have altered her finding that Plaintiff did not establish the medical criteria necessary for a finding of disabled under Listing § 1.04C.” C. Waived Issues. As noted above, in his opening brief, Mr. Martinez argues that the second ALJ erred by failing to sufficiently develop the administrative record and by failing to perform a proper residual functional capacity assessment. However, because Mr. Martinez failed to raise these issues in the objections that he filed to the magistrate judge’s recommended disposition, the issues are waived. Accordingly, we do not need to consider them. See Berna v. Chafer, 101 F.3d 631, 632-33 (10th Cir.1996); Soliz v. Chafer, 82 F.3d 373, 375-76 (10th Cir.1996). Moreover, we" }, { "docid": "15406303", "title": "", "text": "first hypothetical, including the added limitations of a “post carpal tunnel situation, to no frequent, continuous hand and arm activities.” The VE responded that the jobs he named in the first hypothetical involved “frequent usage but not continuous usage,” and that he was uncertain about how to answer the question. On October 31, 1997, the ALJ issued a decision denying Baldwin’s claim. The ALJ found that Baldwin’s “complaints of disabling symptoms are not supported by the evidence and are not credible.” The ALJ determined that Baldwin had degenerative disc disease with cervical radiculo-pathy, alcohol dependence, major affective disorder, depression, personality disorder, and impaired vision. The ALJ did not identify which impairments were severe. The ALJ determined that Baldwin did not meet or equal a listed impairment and that Baldwin had an RFC for light work, limited to lifting or carrying twenty pounds, walking two to three blocks, and with the need for a sit/stand option. The ALJ found that Baldwin’s RFC precluded performance of his past relevant work as a utility worker, stocker, and laborer. However, at step five of the sequential evaluation, the ALJ determined that Baldwin was not disabled based on the medical reports, Baldwin’s testimony, and the VE’s response to the first hypothetical that there were a significant number of jobs available to Baldwin in the national economy. Upon review, the district court-upon recommendation of a magistrate judge-affirmed the ALJ’s determinations. Baldwin appealed. II. Standard of Review We review de novo the district court’s decision upholding the denial of Social Security benefits. Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir.2000); Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir.2000). When considering whether the ALJ properly denied Social Security benefits, we determine whether the decision is based on legal error, and whether the findings of fact are supported by substantial evidence in the record as a whole. Clark v. Chater, 75 F.3d 414, 416 (8th Cir.1996); Baker v. Secretary of Health and Human Services, 955 F.2d 552, 554 (8th Cir.1992). Substantial evidence is “something less than the weight of the evidence, and the possibility of drawing two" }, { "docid": "22635420", "title": "", "text": "Affirmed by published PER CURIAM opinion. OPINION PER CURIAM. Pamela Johnson challenges the district court’s decision affirming the Commissioner of the Social Security Administration’s denial of her disability insurance benefits (DIB) claim. Johnson’s alleged disabilities include chronic pain, depression, and impairments in her hands. After a hearing, the administrative law judge (ALJ) determined that Johnson was not disabled. Johnson appealed the ALJ’s decision to the Appeals Council, which denied her petition for review. Johnson then initiated this suit in federal court, seeking review of the administrative decision. After considering cross-motions for summary judgment, the magistrate judge recommended granting the Commissioner’s motion for summary judgment and denying Johnson’s motion for summary judgment. The district court adopted the magistrate judge’s report and recommendation and Johnson now appeals. For the following reasons, we affirm. I. “This Court is authorized to review the Commissioner’s denial of benefits under 42 U.S.C.A. § 405(g)____” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir.2001). “ ‘Under the Social Security Act, [a reviewing court] must uphold the factual findings of the [ALJ] if they are supported by substantial evidence and were reached through application of the correct legal standard.’ ” Id. (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Craig, 76 F.3d at 589 (internal quotation marks omitted). “In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” Id. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (internal quotation marks omitted). With this framework in mind, we turn to Johnson’s argument that the record lacks substantial- evidence to support the ALJ’s finding that she is not disabled. See Craig, 76 F.3d at 589 (noting that the decision before the court is not whether the claimant is disabled, but whether the ALJ’s finding of no disability is supported by substantial evidence). II. “Disability” is the “inability to" }, { "docid": "23030805", "title": "", "text": "ANDERSON, Circuit Judge. Plaintiff Richard F. Krauser appeals from a district court order, issued by the magistrate judge on consent of the parties under 28 U.S.C. § 636(c), affirming the Commissioner’s decision to deny social security disability and supplemental security income benefits. We independently review the Commissioner’s decision to determine whether it is free from legal error and supported by substantial evidence, Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.2005), though “our review ... is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal.” Berna v. Chater, 101 F.3d 631, 633 (10th Cir.1996). We reverse and remand for the reasons explained below. I. Agency Decision The Administrative Law Judge (ALJ) denied benefits at the last step of the five-step sequential process for determining disability. See Fischer-Ross, 431 F.3d at 731 (summarizing process). The ALJ found that (1) Mr. Krauser had not engaged in substantial gainful activity since the alleged onset date of disability on November, 28, 2003; (2) Mr. Krauser is severely impaired from degenerative joint disease, diabetes, hepatitis B and C, and hypertension; (3) these impairments do not meet or equal any of the per se disabling impairments listed in 20 C.F.R. Part 404, Subpart P., App. 1; (4) Mr. Krauser has the residual functional capacity (RFC) to perform medium work, but is unable to perform his past relevant work as a truck driver and construction worker; and (5) considering his age, education, transferable work skills, and RFC, Mr. Krauser can perform other occupations, identified by a vocational expert (VE), that exist in significant numbers in the regional and national economy, such as delivery driver, hand packager, janitor, laundry sorter, cleaner, clerical mailer, and order clerk. The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final decision for our review. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). It did, however, accept and consider certain additional evidence submitted by Mr. Krauser, concluding that it did not provide a basis for altering the ALJ’s determination. II. Challenges to Agency Decision Mr. Krauser argues that the ALJ’s determination of" }, { "docid": "2738427", "title": "", "text": "appeal on the merits. We emphasize, however, that this kind of request for administrative review, which does not identify the issues with any particularity, effectively sandbags the Appeals Council. We are thereby deprived of its informed views on those issues. Further, had those issues been meritorious, this action could cause a claimant years of delay by requiring her to pursue judicial proceedings to obtain relief which would have been available on administrative appeal. This court has on a number of recent occasions recognized that waiver principles developed in other litigation contexts are equally applicable to social security cases. Thus, waiver may result from the disability claimant’s failure to (1) raise issues before the magistrate judge, Marshall, 75 F.3d at 1426, (2) object adequately to the magistrate judge’s recommendation, Soliz, 82 F.3d at 375-76, (3) preserve issues in the district court as a general matter, Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994), or (4) present issues properly to this court, Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir.1994). In light of the considerations discussed above, we join our sister circuits and extend this line of authority to include the principle of administrative waiver. Henceforth, issues not brought to the attention of the Appeals Council on administrative review may, given sufficient notice to the claimant, be deemed waived on subsequent judicial review. The judgment of the United States District Court for the District of New Mexico is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. . The ALJ also stated, in passing, that plaintiff could return to work as a secretary as well. However, unlike the counseling job properly considered by the ALJ, the nature and demands of plaintiff's past secretarial work were neither explored at the evidentiary hearing nor discussed in the ALJ’s decision. Thus, reliance on the latter occupation is precluded by established precedent requiring an informed comparison" }, { "docid": "4054954", "title": "", "text": "101 F.3d 631, 632 (10th Cir.1996). We have adopted a firm-waiver rule providing that the “failure to make timely objection[s]” to a magistrate judge’s recommendations “waives appellate review of both factual and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.2010) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004)). “There are two exceptions when the firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.’ ” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005) (internal quotation marks omitted)). Here, neither exception applies because Mr. Allman has counsel and he does not justify how the interests of justice compel review. Because Mr. Allman has not adequately presented these arguments to the district court, they are waived. Additionally, Mr. Allman failed to argue before the district court that the ALJ’s findings under Listing 12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1, and his mental-RFC findings were unsupported by substantial evidence. See Appellant’s Opening Br. at 10-18 (nesting this argument within his first argument that the ALJ did not properly consider his headaches). If a claimant fails to present an issue to the district court, the issue is forfeited unless compelling reasons dictate that the forfeiture be excused. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”). Here, Mr. All-man offers no justification at all, much less any compelling reason, for his failure to preserve this issue. Accordingly, Mr. All-man forfeits this argument. II Regarding the issues he did raise in the district court, Mr. Allman argues that the ALJ erred' in not finding that his headaches were a severe impairment at step two and that the ALJ failed to sufficiently consider his headaches in combination with his other severe impairments at step four. He also contends that the ALJ erred in" } ]

[ { "docid": "22926180", "title": "", "text": "defalcation. A defalcation is a failure of a party to account for money or property that has been entrusted to them. E.g., In re Cowley, 35 B.R. 526, 529 (Bankr.D.Kan.1983). In the context of section 523(a)(4), the term “defalcation” includes innocent, as well as intentional or negligent defaults so as to reach the conduct of all fiduciaries who were short in their accounts. In re Gonzales, 22 B.R. 58, 59 (9th Cir. BAP 1982). The debtor contends that there was no defalcation because Baird Construction and the debtor fully complied with section 33-1005 by using the funds received from various projects to pay the subcontractors on the various projects and that in any event, he cannot be held liable for a defalcation by his corporation. Debtor’s arguments are not well taken. The clear import of section 33-1005 is that the trust arises only in favor of those working on the project for which the payments are made. See note 6, supra. To give the statute the construction offered by the debtor would render the trust ineffectual as a device for protecting the rights of laborers and materialmen who supply goods and services on owner occupied residential real property and would be contrary to the language of the statute. Common industry practice and accounting burdens are not a basis for disregarding the plain language of the statute and the protections offered by the statute, as urged by the debtor. In this case, the evidence with respect to a defalcation is that the Garrigans paid Baird Construction in full and that Baird Construction and the debtor did not pay Woodworking in full. This evidence establishes a prima facie case that the debtor and/or Baird Construction failed to account for the moneys held in trust for the subcontractors on the Garrigan project. The debt- or having failed to rebut this showing by presenting evidence to account for the trust funds by their application solely to those providing goods and services on the Garrigan residence, we conclude that a defalcation occurred. The next question is whether the debtor should be held responsible for the" } ]

[ { "docid": "11077690", "title": "", "text": "a § 523(a)(4) claim. Fowler & Peth v. Regan (In re Regan), 477 F.3d 1209, 1211 n. 1 (10th Cir.2007). Thus, MacArthur has established the first two elements of its § 523(a)(4) claim: a technical trust was created from the funds paid to PRI by customers on the Jobs, and Debtor owed fiduciary duties under that trust. As PRI’s president and as the officer in charge of PRI’s funds, Debtor is personally liable for any breach of these duties. See Alexander Co. v. Packard, 754 P.2d 780, 782 (Colo.App.1988). The third element — defalcation—is more problematic. Prior to the Supreme Court’s Bullock decision, the standard for defalcation in the Tenth Circuit was relatively low, requiring only “some portion of misconduct.” Okla. Grocers Ass’n, Inc. v. Millikan (In re Millikan), 188 Fed.Appx. 699, 702 (10th Cir.2006) (unpublished). In the context of a claim involving construction trust funds, courts in this circuit previously defined defalcation as “a fiduciary-debtor’s failure to account for funds that have been entrusted to it due to any breach of a fiduciary duty, whether intentional, willful, reckless, or negligent. Furthermore, the fiduciary-debtor was charged with knowledge of the law and its duties.” Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (10th Cir. BAP 1997). Under this definition, the creditor needed to only establish a failure to account for trust funds (the actus reus), without establishing any certain mental state (the mens rea). A creditor could meet its burden on a § 523(a)(4) claim in this district by showing it had unpaid invoices on construction projects on which the debtor had received trust fund disbursements meant for subcontractors, material suppliers, or laborers. See ASCI Readi-Mix & Asphalt Specialties, Co., Inc. v. Gamboa (In re Gamboa), 400 B.R. 784, 790 (Bankr. D.Colo.2008). The burden then shifted to the debtor to render an accounting to show that all contract disbursements on a particular project were used first to pay all subcontractors, material suppliers and laborers on that project, and not put to some other use. Id. If the debtor failed to meet this burden, then" }, { "docid": "22926172", "title": "", "text": "dealing was consistent with the stipulated common practice in the construction industry for general contractors to pay subcontractors out of funds received from various sources and not necessarily only from funds received on a specific job. After the debtor filed his bankruptcy petition, Woodworking commenced an adversary proceeding alleging that the funds paid by the Garrigans to Baird Construction were trust funds for the benefit of subcontractors on the Garrigan project under A.R.S. § 33-1005 and that debtor’s failure to pay it from these funds constituted a defalcation by a fiduciary under section 523(a)(4). On the parties cross-motions for summary judgment, and following Woodworking’s motion for new trial and relief from judgment, the bankruptcy court entered a judgment in favor of the debtor on May 9, 1989. Woodworking filed this timely appeal. ISSUES 1. Whether A.R.S. § 33-1005 creates a fiduciary relationship for purposes of section 523(a)(4). 2. Whether Baird Construction committed a defalcation under section 523(a)(4) and, if so, whether the debtor, as the corporate officer responsible for accounting for and disbursing funds, is personally liable for the defalcation. 3. Whether Woodworking is precluded from asserting its rights under A.R.S. § 33-1005 by waiver or estoppel. STANDARD OF REVIEW An order granting summary judgment is reviewed de novo. In re Marvin Properties, Inc., 854 F.2d 1183, 1185 (9th Cir.1988). In reviewing a summary judgment, the task of an appellate court is the same as a trial court under Fed.R.Civ.P. 56 (“Rule 56”). Hifai v. Shell Oil Co., 704 F.2d 1425, 1428 (9th Cir.1983). Viewing the evidence in the light most favorable to the non-moving party, the appellate court must determine whether the bankruptcy court correctly found that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id.; see Rule 56(c). DISCUSSION 1. Whether A.R.S. § 33-1005 creates a fiduciary relationship for purposes of section 523(a)(4). 11 U.S.C. § 523(a)(4) provides that an individual debtor is not discharged from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny.” The meaning of" }, { "docid": "11077727", "title": "", "text": "451 F.3d 424, 451 (7th Cir.2006) (rejecting argument that evidence should be evaluated as of the time the motion was made); Duval v. Midwest Auto City, Inc., 578 F.2d 721, 723-24 (8th Cir.1978) (holding that once a defendant introduces evidence on its own behalf, sufficiency of evidence is tested on appeal by reviewing the entire record, even when the trial judge reserved ruling on the motion when made); Diener v. McBeth (In re Diener), 483 B.R. 196, 208-09 (9th Cir. BAP 2012) (same). Once Debtor put on his own evidence, the Court had discretion to consider the entire record. In re Oberdick, 490 B.R. at 697. Since the Court reviewed the entire record, a decision on Debtor's Rule 52(c) motion \"would be tantamount to making a decision on the case after trial on the complete trial record, as if no such motion[] had ever been made,” thereby making separate consideration of the Rule 52(c) motion \"pointless.” Id. . Both the Eleventh and Sixth Circuits previously applied an \"objective recklessness” standard to defalcation under § 523(a)(4). Bullock v. BankChampaign, N.A. (In re Bullock), 670 F.3d 1160, 1166 (11th Cir.2012), rev’d, - U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013); Patel v. Shamrock Floorcovering Serv., Inc. (In re Patel), 565 F.3d 963 (6th Cir.2009). In the construction trust fund context, the Sixth Circuit described objective recklessness as \"when the evidence supports the objective fact that monies paid into the building contract fund were used for purposes other than to pay laborers, subcontractors or materialmen first ... so long as the use was not the result of mere negligence or a mistake of fact.” Patel, 656 F.3d at 970 (internal citation omitted). . This is in accordance with the Construction Trust Fund Statute, which provides that a contractor must maintain separate records of account for each project or contract but \"need not deposit trust funds from a single project in a separate bank account solely for that project so long as trust funds are not expended in a manner prohibited by this section.” Colo.Rev.Stat. § 38-22-127(4)." }, { "docid": "3370393", "title": "", "text": "Woods challenges both conclusions with this appeal. Discussion Section 523(a) of the Bankruptcy Code states, in relevant part, that: “A discharge under section 727 ... of this title does not discharge an individual debt- or from any debt ... for ... defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). Therefore, “a finding of nondischargeability under section 523(a)(4) requires a showing of (1) the existence of a fiduciary relationship between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship.” In re Storie, 216 B.R. 283, 285 (10th Cir. BAP 1997). Appellees had the burden of proof to establish these elements by a preponderance of the evidence. In re Seay, 215 B.R. 780 (10th Cir. BAP 1997). Further, “exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” In re Kaspar, 125 F.3d 1358, 1361 (10th Cir.1997). Accordingly, the issues to be decided are whether, given this narrow construction, appellees proved the existence of a § 523(a)(4) fiduciary relationship and, if so, a defalcation of those fiduciary duties. I address those Issues sequentially. 1. Fiduciary Duty For a fiduciary relationship to exist under § 523(a)(4), there must be an express or technical trust. In re Young, 91 F.3d 1367, 1371 (10th Cir.1996). The bankruptcy court did not find, and appellees do not assert, the existence of any express trust, but the court concluded that a technical trust was created because the defendant acted as a joint venturer, management committee member, and attorney at the closing of the Platte Valley and Fox Ranch loans. In re Woods, 175 B.R. at 84. A technical trust may arise as a result of defined obligations imposed upon the debt- or by state or federal statute. See, e.g., In re Romero, 535 F.2d 618, 622 (10th Cir. 1976) (general contractor held under New Mexico statutes to act in a fiduciary capacity with regard to funds advanced by the owner for payment of subcontractors and suppliers). On" }, { "docid": "22926171", "title": "", "text": "Karl Geissler, its president and sole shareholder, performed approximately 50-60 subcontracting jobs for Baird Construction over a ten year period, for which it billed and collected from Baird Construction approximately $350,000. Baird Construction typically paid Woodworking 60-90 days after being invoiced for construction work and, in the ease of the Garrigan residence, paid Woodworking no earlier than 55 days after the invoice date. Contemporaneously with the Garri-gan project, Woodworking was subcontracting for Baird Construction on at least two other jobs. Payments received by Woodworking from Baird Construction on the other jobs totalled at least $11,431 and were properly applied to those jobs. Geissler knew that such payments were from the same checking account as payments received for the Garrigan job, knew that payments Woodworking received from Baird Construction for the Garrigan project may have been made from funds other than those received by Baird Construction from the Garrigans and knew that funds received by Baird Construction from the Garrigans may have been used to pay Woodworking for subcontracting work on other projects. This course of dealing was consistent with the stipulated common practice in the construction industry for general contractors to pay subcontractors out of funds received from various sources and not necessarily only from funds received on a specific job. After the debtor filed his bankruptcy petition, Woodworking commenced an adversary proceeding alleging that the funds paid by the Garrigans to Baird Construction were trust funds for the benefit of subcontractors on the Garrigan project under A.R.S. § 33-1005 and that debtor’s failure to pay it from these funds constituted a defalcation by a fiduciary under section 523(a)(4). On the parties cross-motions for summary judgment, and following Woodworking’s motion for new trial and relief from judgment, the bankruptcy court entered a judgment in favor of the debtor on May 9, 1989. Woodworking filed this timely appeal. ISSUES 1. Whether A.R.S. § 33-1005 creates a fiduciary relationship for purposes of section 523(a)(4). 2. Whether Baird Construction committed a defalcation under section 523(a)(4) and, if so, whether the debtor, as the corporate officer responsible for accounting for and disbursing funds, is" }, { "docid": "11440703", "title": "", "text": "power, is sufficient to establish a fiduciary relationship for purposes of dischargeability,\" quoting Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1372 (10th Cir.1996)); Schreibman v. Zanetti-Gierke (In re Zanetti-Gierke), 212 B.R. 375 (Bankr.D.Kan.1997) (partners are not fiduciaries under Kansas and Missouri law); Krishnamurthy v. Nimmagadda (In re Krishnamurthy), 209 B.R. 714 (9th Cir. BAP 1997) (debtor-partners were fiduciaries of partners because under California law partners are fiduciaries); Lewis v. Scott (In re Lewis), 97 F.3d 1182 (9th Cir.1996) (under Arizona law, partners are fiduciaries); In the Matter of Woldnian, 92 F.3d 546 (7th Cir.1996) (two lawyers who were joint venturers were not fiduciaries); Deodati v. M.M. Winkler & Associates (In re M.M. Winkler & Associates), 209 B.R. 397 (Bankr.N.D.Miss.1996) (debtor/general partner of corporate accounting firm); Laughter v. Speight (In re Speight), 16 F.3d 287 (8th Cir.1994) (State court judgment against partner for breach of fiduciary duty was given collateral estoppel effect).; LSP Investment Partnership v. Bennett (In re Bennett), 970 F.2d 138 (5th Cir.1992) (managing partner of a managing partner of a limited partnership held not to be a fiduciary to the limited partners, even though a managing partner of a general partnership was a fiduciary to partners under Texas law); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) (joint venturer was a fiduciary under Colorado common law and statutory law); BAMCO 18 v. Reeves (In re Reeves), 124 B.R. 5 (Bankr.D.N.H.1990) (limited partners are not fiduciaries to each other for purposes of 11 U.S.C. § 523(a)(4)); Stahl v. Lang (In re Lang), 108 B.R. 586 (Bankr.N.D.Ohio 1989) (general partner was not fiduciary to limited partners, but his investment of funds in high-risk investment rendered debt nondischargeable as willful and malicious injury); Leeb v. Guy (In re Guy), 101 B.R. 961 (Bankr.N.D.Ind.1988) (general partner is fiduciary to limited partners); Lewis v. Short (In re Short), 818 F.2d 693 (9th Cir.1987) (joint venturer who controlled affairs of joint venture was trustee whose defalcation rendered his debt nondischargeable as violation of fiduciary duty, under statute and actual agreement of the parties); Ragsdale v. Haller (In re Ragsdale)," }, { "docid": "15580134", "title": "", "text": "text of § 523(a)(4). We note that even cases holding that any failure to account, without more, constitutes a defalcation, contain facts which indicate some degree of culpability greater than mere negligence. For example, in In re Short, 818 F.2d 693 (9th Cir.1987), a partner used funds for personal living expenses. Both In re Baird, 114 B.R. at 204, and In re Gonzales, 22 B.R. at 59, involved facts where contractors diverted funds that were held in statutory trust for one subcontractor to other subcontractors. Similarly, almost all cases holding the debt nondischargeable had some bad faith present. In addition, §§ 523(a)(2), (4) and (6) have one thing in common: they require some element of bad faith to render a debt nondis-chargeable. Because of the stigma that non-dischargeability under these sections brings, the Code and the Rules require that complaints pursuant to these sections be filed within a brief period of time. Under § 523(a)(4) all the other grounds, i.e. fraud, embezzlement or larceny, require some element of bad faith. Therefore, to read “defalcation” as requiring only a breach of ordinary care would be inconsistent with the design of § 523 in general and, in particular, to the design of §§ 523(a)(2), (4) and (6). We decline to expand the definition further and hold that the mere failure to use ordinary care in accounting for an asset does not per se constitute “defalcation” within the context of § 523(a)(4). There simply must be a showing of some element of bad faith or reprehensible conduct for nondischargeability under § 523(a)(4). We must distinguish situations where a fiduciary had invested funds for a beneficiary and the resulting failure to account was due to a market diminution in the value of the investment or failure to otherwise prudently invest those funds from the situation where the fiduciary was entrusted with funds but failed to produce any record of their disposition. The former is merely negligent, while the latter clearly involves wrongful conduct and would be considered a defalcation. The only conduct by the debtor resulting in the state court judgment was his failure" }, { "docid": "11077691", "title": "", "text": "whether intentional, willful, reckless, or negligent. Furthermore, the fiduciary-debtor was charged with knowledge of the law and its duties.” Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (10th Cir. BAP 1997). Under this definition, the creditor needed to only establish a failure to account for trust funds (the actus reus), without establishing any certain mental state (the mens rea). A creditor could meet its burden on a § 523(a)(4) claim in this district by showing it had unpaid invoices on construction projects on which the debtor had received trust fund disbursements meant for subcontractors, material suppliers, or laborers. See ASCI Readi-Mix & Asphalt Specialties, Co., Inc. v. Gamboa (In re Gamboa), 400 B.R. 784, 790 (Bankr. D.Colo.2008). The burden then shifted to the debtor to render an accounting to show that all contract disbursements on a particular project were used first to pay all subcontractors, material suppliers and laborers on that project, and not put to some other use. Id. If the debtor failed to meet this burden, then the defalcation standard would be met, even if the debtor was, at the time, unaware of the fiduciary duties imposed by the Construction Trust Fund Statute. Id. In Bullock, the Supreme Court resolved a split among the circuits as to the meaning of defalcation by holding that it requires proof of an “intentional wrong.” Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013). An intentional wrong includes not only conduct that the fiduciary knows is improper, but also reckless conduct. Id. Thus, liability can be imposed where the fiduciary ‘“consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable risk’ that his conduct will turn out to violate a fiduciary duty.” Id. (quoting Model Penal Code § 2.02(2)(c)). The risk “must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Id. (quoting Model" }, { "docid": "3370394", "title": "", "text": "this narrow construction, appellees proved the existence of a § 523(a)(4) fiduciary relationship and, if so, a defalcation of those fiduciary duties. I address those Issues sequentially. 1. Fiduciary Duty For a fiduciary relationship to exist under § 523(a)(4), there must be an express or technical trust. In re Young, 91 F.3d 1367, 1371 (10th Cir.1996). The bankruptcy court did not find, and appellees do not assert, the existence of any express trust, but the court concluded that a technical trust was created because the defendant acted as a joint venturer, management committee member, and attorney at the closing of the Platte Valley and Fox Ranch loans. In re Woods, 175 B.R. at 84. A technical trust may arise as a result of defined obligations imposed upon the debt- or by state or federal statute. See, e.g., In re Romero, 535 F.2d 618, 622 (10th Cir. 1976) (general contractor held under New Mexico statutes to act in a fiduciary capacity with regard to funds advanced by the owner for payment of subcontractors and suppliers). On the other hand, a general fiduciary duty arising out of a relationship does not suffice: “Neither a general fiduciary duty of confidence, trust, loyalty, in good faith, nor an inequality between the parties’ knowledge or bargaining power, is sufficient to establish a fiduciary relationship for purposes of dischargeability.” Young, 91 F.3d at 1372. With regard to an attorney’s duties to his client, the law requires “more than an attorney-client relationship alone to establish a fiduciary relationship for purposes of § 523(a)(4).” Id. at 1371. To the same effect, the generic duties of trust and confidence owed by partners or joint venturers do not create a § 523(a)(4) fiduciary relationship. In re Schwenn, 126 B.R. 351, 353 (D.Colo.1991) (Uniform Partnership Act does not create a technical trust). To the extent there may have been uncertainty whether such generic relational duties give rise to a § 523(a)(4) fiduciary relationship, In re Young has determined that such relationships do not. In re Seay, 215 B.R. at 786-787 (interpreting the court’s opinion in this case to conclude that the" }, { "docid": "13865374", "title": "", "text": "EDITH H. JONES, Circuit Judge: Appellant Coburn Company of Beaumont, a plumbing sub-contractor to Nicholas and his company S & N on four construction projects, contests the bankruptcy and district courts’ conclusions that the debt owed to Coburn from these projects was not non-dischargeable in Nicholas’s Chapter 7 bankruptcy. 11 U.S.C. § 523(a)(4). This court must decide whether the Texas Construction Trust Fund Statute, Tex. Property Code § 162.001 et seq. (Vernon Supp.1991) created a fiduciary duty between Nicholas and Coburn as subcontractor and, if so, whether Nicholas acted in fraud or defalcation of that duty. We conclude that because no fiduciary duty existed even under the 1987 amendments to the statute, § 523(a)(4) does not bar the dischargeability of Coburn’s debt. Accordingly, we affirm. BACKGROUND Coburn supplied plumbing materials to Nicholas’s company as a sub-contractor on four construction projects. S & N was paid in full on three of those projects, but Co-burn was never paid for any of the materials supplied. As of the date of Nicholas’s bankruptcy, Cobum was owed over $27,-000. Nicholas is the president and sole shareholder of S & N. Nicholas represented to each general contractor that he had paid all of his sub-contractors and suppliers when in fact Coburn had not been paid. Ruling on the applicability of 11 U.S.C. § 523(a)(4), the bankruptcy court held that Texas law made Nicholas a trustee for Coburn of funds received by S & N on the construction project to which Coburn supplied materials. The court held, however, that Nicholas did not intend to defraud Coburn of these funds ánd that while the evidence was “rather sketchy on exactly what happened to the money that was received,” all of the money from the projects went into the operation of Nicholas’s business. The court also found that there was no evidence that the funds received from the owners of the project were used for any purpose other than to pay bills of the corporation. As a result, the bankruptcy court found neither fraud nor defalcation by Nicholas while acting in a fiduciary capacity. The district court affirmed." }, { "docid": "13785435", "title": "", "text": "are imposed on transactions by operation of law as a matter of equity. Moreover, the requisite trust relationship must exist pri- or to the act creating the debt and without reference to it. State statutes which impose a trust ex-maleficio are not within the scope of section 17(a)(4) since such trusts only arise upon an act of misappropriation. Id. at 251-52 (citations omitted). In applying this rule to the facts in Johnson, the Sixth Circuit found that the Michigan Building Contract Fund Act created a true trust relationship with statutorily imposed fiduciary duties: The Michigan Building Contract Fund Act imposes a “trust” upon the building contract fund paid by any person to a contractor or subcontractor for the benefit of the person making the payment, contractors, laborers, subcontractors and materialmen. The contractor or subcontractor receiving the payments is the “trustee”. The statute imposes a duty upon the trustee to use the money in the building contract fund to first pay laborers, subcontractors and materialmen on the particular project for which the funds were deposited before he uses the fund for any other purpose. Any contractor or subcontractor, who, with intent to defraud, retains or uses any portion of the building contract fund for any purpose other than to first pay the trust beneficiaries, is guilty of a felony in appropriating trust funds to his own use. The appropriation by a contractor or subcontractor of any monies in the building contract fund before the payment of monies due or to become due trust beneficiaries, is evidence of intent to defraud. That the statute does not mandate any particular form or procedures in handling trust funds neither undercuts the validity of the trust nor renders the statute unconstitutionally vague. The Building Contract Fund Act may give rise to a civil cause of action as well as criminal penalties. Id. at 252 (citations omitted). This Court cannot agree with the state court that the contract between these parties created a joint venture relationship. In Berger v. Mead, 127 Mich.App. 209, 338 N.W.2d 919 (1983), the Michigan Court of Appeals reiterated the six elements" }, { "docid": "13785436", "title": "", "text": "he uses the fund for any other purpose. Any contractor or subcontractor, who, with intent to defraud, retains or uses any portion of the building contract fund for any purpose other than to first pay the trust beneficiaries, is guilty of a felony in appropriating trust funds to his own use. The appropriation by a contractor or subcontractor of any monies in the building contract fund before the payment of monies due or to become due trust beneficiaries, is evidence of intent to defraud. That the statute does not mandate any particular form or procedures in handling trust funds neither undercuts the validity of the trust nor renders the statute unconstitutionally vague. The Building Contract Fund Act may give rise to a civil cause of action as well as criminal penalties. Id. at 252 (citations omitted). This Court cannot agree with the state court that the contract between these parties created a joint venture relationship. In Berger v. Mead, 127 Mich.App. 209, 338 N.W.2d 919 (1983), the Michigan Court of Appeals reiterated the six elements of a joint venture: A joint venture has six elements: “(a) an agreement indicating an intention to undertake a joint venture; “(b) a joint undertaking of; “(c) a single project for profit; “(d) a sharing of profits as well as losses; “(e) contribution of skills or properties by the parties; “(f) community interest and control over the subject matter of the enterprise.” Meyers v. Robb, 82 Mich App 549, 557; 267 NW2d 450 (1978), lv den 403 Mich 812 (1978). The key consideration is that the parties intended a joint venture. Goodwin v. S.A. Healy Co., 383 Mich 300; 174 NW2d 755 (1970); Hathaway v. Porter Royalty Pool, Inc., 296 Mich 90; 295 NW 571; 138 ALR 955 (1941). Id. at 214-15, 338 N.W.2d 919. The state court record does not support the conclusion that these parties intended to create a joint venture. The express limitation to a single transaction to be conducted as a joint venture is missing. The court admits that the relationship between these parties is difficult to define; it more closely" }, { "docid": "1120747", "title": "", "text": "a showing of actual fraud. “The court must therefore strictly construe the exceptions to discharge[.]” Shipe, 41 B.R. at 586. Section 523(a)(4) also provides that “defalcation” in a fiduciary capacity may constitute a basis for denial of discharge. Unlike fraud, the standard of conduct required to establish defalcation under § 523(a)(4) is less precise. “Defalcation is broader than ‘embezzlement’ and probably broader than ‘misappropriation.’ ” Collier’s on Bankruptcy, ¶ 523.14, 523-103 (15th ed.1991). In Central Hanover Bank & Trust v. Herbst, 93 F.2d 510 (2d Cir.1937), Judge Learned Hand delivered an insightful view on the scope of defalcation under the Bankruptcy Act of 1867. In Herbst, the debtor had acted as a receiver in a foreclosure action, and had taken and spent a premium commission he had received prior to ascertaining whether the plaintiff would appeal his premium. In rejecting the debtor’s contentions that no misconduct had occurred, Judge Hand wrote: “Whatever was the original meaning of ‘defalcation,’ it must here have covered other defaults than deliberate malver-sations, else it added nothing to the words, ‘fraud or embezzlement.’ ” Id. at 511. \"... '[Misappropriation must be due to a known breach of the [fiduciary] duty, and not to mere negligence or mistake.’ Although that word probably carries a larger implication of misconduct than ‘defalcation,’ ‘defalcation’ may demand some portion of misconduct; we will assume arguen-do that it does.” Id. at 512. In Gonzales v. Raiser Construction, 22 B.R. 58 (9th Cir. BAP 1982), the court was faced with nearly the same scenario posed here. Under a construction contract, payments received by the contractor for the subcontractor “immediately became and constituted a trust fund for the” subcontractors. In Gonzales, the trial court made specific findings of fact “that [payor] paid [debtor] $34,452.20 and that debtor had diverted $26,663.18 to other projects and failed to pay Pacific Ready Mix, a material-man, and Donald Peckman, a laborer, on the [payor’s] two projects.” Id. at 59. The Panel affirmed a finding of defalcation below since “the trial court did not find the debtor acted fraudulently but found that he committed a defalcation with respect" }, { "docid": "15580139", "title": "", "text": "thé term “defalcation” may include innocent defaults so as to reach- all fiduciaries who for any reasons are short in their accounts and that the term did not require as much misconduct as the term “misappropriation,” which had been held to require an actually or constructively known breach of duty and not mere negligence or mistake. The court then assumed, arguendo, that defalcation does require some misconduct and determined that the debtor’s conduct in taking money on a conditional authority which he knew could be revoked amounted to a defalcation. Many cases, both before and after the enactment of the Bankruptcy Code have relied upon Herbst to determine that the term “defalcation” does not require intentional misconduct and includes failures to account arising from negligence or mistake. See, e.g., Carey Lumber Co. v. Bell, 615 F.2d 370, 375 (5th Cir.1980); In re Kawczynski, 442 F.Supp. 413 (W.D.N.Y.1977). Other cases, however, have indicated that a defalcation clearly requires acts amounting to misconduct or reflecting bad faith or a known breach of duty and not merely inadvertence, mistake or negligence. See, e.g., Kadish v. Phx.-Scotts Sports Co., 11 Ariz.App. 575, 579, 466 P.2d 794, 798 (1970). In this circuit, at least two Bankruptcy Appellate Panel decisions have stated and applied the rule that a defalcation includes innocent as well as negligent or intentional defaults so as to reach all fiduciaries who are short in their accounts. In re Baird, 114 B.R. 198, 204 (9th Cir.1990); In re Gonzales, 22 B.R. 58 (9th Cir. BAP 1982). This rule was also stated, arguably in dicta, in In re Short, 818 F.2d 693, 695-96 (9th Cir.1987). In Baird and Gonzales, the conduct at issue involved the failure of the debtors to pay over trust funds to the subcontractors entitled to those funds. The key factor leading to a finding of defalcation in those cases was that the debtors breached their trust obligations by failing to pay over the pertinent sums. Although there are indications in those cases that the debtors paid the funds to other subcontractors, there is no indication that the debtors acted in" }, { "docid": "11440704", "title": "", "text": "limited partnership held not to be a fiduciary to the limited partners, even though a managing partner of a general partnership was a fiduciary to partners under Texas law); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) (joint venturer was a fiduciary under Colorado common law and statutory law); BAMCO 18 v. Reeves (In re Reeves), 124 B.R. 5 (Bankr.D.N.H.1990) (limited partners are not fiduciaries to each other for purposes of 11 U.S.C. § 523(a)(4)); Stahl v. Lang (In re Lang), 108 B.R. 586 (Bankr.N.D.Ohio 1989) (general partner was not fiduciary to limited partners, but his investment of funds in high-risk investment rendered debt nondischargeable as willful and malicious injury); Leeb v. Guy (In re Guy), 101 B.R. 961 (Bankr.N.D.Ind.1988) (general partner is fiduciary to limited partners); Lewis v. Short (In re Short), 818 F.2d 693 (9th Cir.1987) (joint venturer who controlled affairs of joint venture was trustee whose defalcation rendered his debt nondischargeable as violation of fiduciary duty, under statute and actual agreement of the parties); Ragsdale v. Haller (In re Ragsdale), 780 F.2d 794 (9th Cir.1986) (general partners in California are fiduciaries); Clark v. Taylor (In Re Taylor), 58 B.R. 849 (Bankr.E.D.Va.1986) (existence of a partnership did not per se create a fiduciary relationship between the partners). . PROPERTY MANAGERS: Otto v. Niles (In re Niles), 106 F.3d 1456 (9th Cir.1997) (clients' property manager who was also licensed real estate broker was fiduciary as trustee of express trust under California law); Mostiler v. Couch (In re Couch), 100 B.R. 802 (Bankr.E.D.Va.1988) (property management corporation and corporate officer who was 80% stockholder were fiduciaries for property owner and liable for defalcation); Oppenheimer v. Reder (In re Reder), 60 B.R. 529 (Bankr.D.Minn.1986) (borrower/property manager was not fiduciary to lender as no express trust existed). . INSURANCE AGENTS: P.F.C. Mgt. Corp. v. Chomat (In re Chomat), 216 B.R. 681 (Bankr.S.D.Fla.1997) (reinsurance broker’s shareholder who failed to obtain reinsurance and misappropriated premiums was not a fiduciary to insurance company from which he obtained premiums); Employers Workers' Comp. Assn. v. Kelley (In re Kelley), 215 B.R. 468 (10th Cir. BAP 1997)" }, { "docid": "23527025", "title": "", "text": "bond. 9. Subsequent to its termination, Abney received a final draw from HRS in the amount of $89,661.63 for labor, services and materials furnished to the Cluster Facility Project by its subcontractors, laborers and materialmen. 10. The funds received by Abney were not segregated but were co-mingled with funds received from other projects. Consequently, a portion of the final draw was used to pay some of Abney’s other debts, including a $25,000 payment to Southeast Bank and a $12,851.25 payment to itself for contractor’s overhead. 11. Neither the terms of the joint venture agreement between Abney and NesS-mith or the terms of the payment and performance bonds issued by Transamerica required the segregation of any construction project proceeds for the payment of materialmen and subcontractors. 12. Kelley testified that the $25,000 check to Southeast Bank was deposited into an interest bearing account in order to maximize the return on idle funds. Ab-ney’s ledger account corroborates such testimony and shows numerous deposits and withdrawals corresponding to its business needs. 13. Due to Abney’s default on the Cluster Facility Project, plaintiff was required to pay to or on behalf of the surety the total sum of $107,170.11 in satisfaction of its claim against the payment bond in accordance with its obligation to indemnify surety. 14. Plaintiff now seeks to recover a portion of those losses by filing a complaint objecting to defendant’s discharge pursuant to Section 523(a)(4). Specifically, plaintiff argues that it was required to pay $37,851.25 to or on behalf of the surety in satisfaction of claims against the payment bond that it would not have had to pay if Kelley, acting as an officer of Abney, had applied the $25,000 check and the $12,-851.25 check towards payment of those entities supplying labor, services or materials to the Cluster Facility Project. 15. Plaintiff asserts two grounds under 11 U.S.C. Section 523(a)(4) for excepting this debt from discharge: 1. Defalcation while acting in a fiduciary capacity; and 2. Embezzlement. 16.The complaint against Frances A. Kelley was dismissed by separate order on September 4, 1987. Her husband, Lawrence A. Kelley, remains as sole" }, { "docid": "15580140", "title": "", "text": "mistake or negligence. See, e.g., Kadish v. Phx.-Scotts Sports Co., 11 Ariz.App. 575, 579, 466 P.2d 794, 798 (1970). In this circuit, at least two Bankruptcy Appellate Panel decisions have stated and applied the rule that a defalcation includes innocent as well as negligent or intentional defaults so as to reach all fiduciaries who are short in their accounts. In re Baird, 114 B.R. 198, 204 (9th Cir.1990); In re Gonzales, 22 B.R. 58 (9th Cir. BAP 1982). This rule was also stated, arguably in dicta, in In re Short, 818 F.2d 693, 695-96 (9th Cir.1987). In Baird and Gonzales, the conduct at issue involved the failure of the debtors to pay over trust funds to the subcontractors entitled to those funds. The key factor leading to a finding of defalcation in those cases was that the debtors breached their trust obligations by failing to pay over the pertinent sums. Although there are indications in those cases that the debtors paid the funds to other subcontractors, there is no indication that the debtors acted in bad faith or engaged in intentional misconduct. In fact in Gonzales, the Panel rejected the debtor’s contention that there was no defalcation because the failure to account for the funds was unintentional. In Baird, the fact that the debtor may have acted in accordance with common industry practice did not prevent a finding of defalcation. Although, as the majority suggests, there are arguable policy reasons supporting a restricted definition of the term defalcation, there are also policy reasons supporting a determination that defalcation should include innocent defaults by a fiduciary. Even if nondischargeable debts must arise from some culpable conduct, the requisite culpability or “badness” to conform to the spirit of the bankruptcy laws is supplied by the special legal status of a fiduciary and the breach of the attendant duties and higher standard of dealing. See In re Johnson, 691 F.2d 249, 256 (6th Cir.1982); In re Twitchell, 72 B.R. 431, 436 (Bankr.D.Utah 1987), rev’d 91 B.R. 961 (D.Utah 1988), rev’d without op. 892 F.2d 86 (10th Cir.1989); see also Restatement (Second) of Torts" }, { "docid": "7317904", "title": "", "text": "charged with specific affirmative duties, including paying out trust funds in accordance with the statutorily imposed priority scheme, not using funds for its own purposes so long as trust beneficiaries, laborers, subcontractors and materialmen remain unpaid and using funds obtained for a specific project to first pay for labor and materials furnished for that specific project.” Id. at 252-53. “The fiduciary relationship established by the Building Contract Fund Act arises at the time any monies are paid to the contractor or subcontractor whether or not there are any beneficiaries of the trust at that time and continues until all of the trust beneficiaries have been paid.” Id. at 253 (citations omitted). See also id. (“Until some person makes a payment into the building contract fund, the contractor or subcontractor is liable to suppliers and laborers solely based on contract. Once a statutory trust is activated by payment into a building contract fund, the statute prohibits the contractor or subcontractor’s use of monies received for a particular project for anything other tha[n] first paying laborers and suppliers on that project.”). In Selby v. Ford Motor Co., 590 F.2d 642 (6th Cir.1979), a contractor disbursed money from a building contract fund to subcontractors on the project. When the contractor filed for bankruptcy protection, the trustee sought to set aside these payments as preferential transfers. This court agreed with the subcontractors that the payments could not be set aside because the subcontractors held title to the money in the building contract fund as trust beneficiaries under the Michigan Building Contract Fund Act. Id. at 644-47. See also In re Johnson, 691 F.2d at 254 (“[T]he law of Michigan forbade [the contractor’s] use of funds deposited in the building contract fund for his own purposes without first discharging his indebtedness, actual and anticipated, to laborers, subcontractors and materialmen on the particular project for which funds were received.”). See generally id. at 257 (“Because Johnson is a contractor who was the recipient of monies paid into building contract funds, he is charged with knowledge of his status as a trustee under the Michigan Building Contract" }, { "docid": "1120748", "title": "", "text": "‘fraud or embezzlement.’ ” Id. at 511. \"... '[Misappropriation must be due to a known breach of the [fiduciary] duty, and not to mere negligence or mistake.’ Although that word probably carries a larger implication of misconduct than ‘defalcation,’ ‘defalcation’ may demand some portion of misconduct; we will assume arguen-do that it does.” Id. at 512. In Gonzales v. Raiser Construction, 22 B.R. 58 (9th Cir. BAP 1982), the court was faced with nearly the same scenario posed here. Under a construction contract, payments received by the contractor for the subcontractor “immediately became and constituted a trust fund for the” subcontractors. In Gonzales, the trial court made specific findings of fact “that [payor] paid [debtor] $34,452.20 and that debtor had diverted $26,663.18 to other projects and failed to pay Pacific Ready Mix, a material-man, and Donald Peckman, a laborer, on the [payor’s] two projects.” Id. at 59. The Panel affirmed a finding of defalcation below since “the trial court did not find the debtor acted fraudulently but found that he committed a defalcation with respect to funds which he held in trust.” Id. In the present dispute, the plaintiff has not specifically pled defalcation in either its complaint, or its motion for summary judgment. However, “[p]ursuant to § 523(a)(4) a debt is not subject to discharge if the debtor, in a fiduciary capacity, engages either in fraud or defalcation with respect to funds held in trust.” Gonzales, 22 B.R. at 59 (Emphasis supplied). The only facts set out by the plaintiff to support a finding of fraud or defalcation are that money was paid to defendant by owners and that “[d]e-fendant used said money for purposes other than paying the subcontractors as the Plaintiff's legal bill remains unpaid.” (Emphasis supplied). In addition, plaintiff concludes without explanation that “[defendant, while acting in a fiduciary position; unlawfully and fraudulently coverted [sic] money due to the Plaintiff.” Plaintiff’s complaint (count # 3). The above fact regarding non-payment, absent any elaboration on the misuse, is found in the plaintiff’s amended complaint, its motion for summary judgment, and its affidavit in support thereof. By its" }, { "docid": "15922095", "title": "", "text": "Supreme Court has declared that homeowners are beneficiaries under the construction trust fund statutes “to the extent of any lienable claims arising from the contract between the owner and the general contractor.” Stevens v. Harris (In re Harris), 49 P.3d 710, 716 (Okla.2002). The contractor does not dispute the existence of a fiduciary relationship in this case. Rather, he contends that he committed no acts constituting a “defalcation” while he was acting in a fiduciary capacity. Once a creditor objecting to the dischargeability of a debt under § 523(a)(4) has met its burden of showing that the debtor is a fiduciary and that its debt has arisen because the debtor has not paid the creditor funds entrusted to him, the burden then shifts to the debtor to render an accounting to show that it complied with its fiduciary duty. Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (10th Cir. BAP 1997). A defalcation under § 523(a)(4) is a fiduciary’s failure to account for funds that have been entrusted to him due to any breach of fiduciary duty, whether intentional, willful, reckless or negligent. Storie, 216 B.R. at 288. The owners’ theory is that, as a fiduciary, the contractor is obligated to account to them for all funds which were advanced to the contractor for the owners’ construction project. They posit that failure to establish that all such funds were expended for labor performed and/or materials used in the construction of their home constitutes a defalcation under § 523(a)(4). Conversely, the contractor argues that his obligation to the owner is not to account for all funds, but only to pay lienable claims, of which there are now none. The owners rely on the case of In re Storie, 216 B.R. at 283 as support for their position. In Storie, a contractor received funds for a construction project, from which he paid himself a salary, but he failed to pay all materialmen and suppliers on the project. The court held that the debt owed by the contractor was nondis-chargeable, amounting to a defalcation while acting in" } ]

[ { "docid": "21022989", "title": "", "text": "the opposite in order to win a second time. That satisfies the requirements of judicial estoppel. See, e.g., New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Astor Chauffeured Limousine Co. v. Runnfeldt Investment Corp., 910 F.2d 1540, 1547-48 (7th Cir.1990). Cannon-Stokes blamed the false statement on her bankruptcy lawyer; accepting this explanation, the district court declined to dismiss the proceeding but later granted summary judgment to the Postal Service on the merits — -which on appeal defends its judgment by relying, once again, on judicial estoppel. All six appellate courts that have considered this question hold that a debtor in bankruptcy who denies owning an asset, including a chose in action or other legal claim, cannot realize on that concealed asset after the bankruptcy ends. See Payless Wholesale Distributors, Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570 (1st Cir.1993); Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 337 F.3d 314 (3d Cir.2003); Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir.2005); United States ex rel. Gebert v. Transport Administrative Services, 260 F.3d 909, 917-19 (8th Cir.2001); Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778 (9th Cir.2001); Barger v. Cartersville, 348 F.3d 1289, 1293-97 (11th Cir.2003). We reserved that question in Biesek v. Soo Line R.R., 440 F.3d 410 (7th Cir.2006), while holding that judicial estoppel has a proviso: bankruptcy fraud designed to hide an asset from creditors does not prevent the creditors themselves from realizing on the claim after its discovery. Judicial estoppel is an equitable doctrine, and it is not equitable to employ it to injure creditors who are themselves victims of the debtor’s deceit. Moreover, as a technical matter the estate in bankruptcy, not the debtor, owns all pre-bankruptcy claims, and unless the estate itself engages in contradictory litigation tactics the elements of judicial estoppel are not satisfied. But if the estate (through the trustee) abandons the claim, then the creditors no longer have an interest, and with the claim in the debtor’s hands the possibility of judicial estoppel comes to the fore. That is" } ]

[ { "docid": "22320839", "title": "", "text": "reasons for that denial. The premise, therefore, that the government misled this Court is based on nothing but conjecture. This is particularly so in light of the independent and sufficient ground for denying the motion, to wit, the well-established rule that the failure to identify or argue an issue in an opening brief constitutes waiver of that issue on appeal. See In re Surrick, 338 F.3d at 237. For this reason, moreover, Pelullo’s invocation of judicial estoppel is unavailing. In New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), the Supreme Court noted that: several factors typically inform the decision whether to apply that doctrine in a particular case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent po sition in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotations and citations omitted). Inasmuch as Pelullo cannot show that this Court accepted the government’s representation in denying his motion to file a supplemental brief, there is “no risk of inconsistent court determinations” and “little threat to judicial integrity.” Id. at 751, 121 S.Ct. 1808; see also Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 778 (3d Cir.2001) (“Judicial estoppel’s sole valid use ... is to remedy an affront to the court’s integrity.”). Thus, an integral factor justifying the application of judicial estoppel is clearly absent. See Bulger, 243 F.3d at 778 (holding that judicial estoppel is not appropriate where “the initial claim was never accepted or adopted by a court" }, { "docid": "8802966", "title": "", "text": "theory of judicial estoppel when confronting omitted claims that a revested debtor seeks to prosecute after obtaining confirmation of a chapter 11 plan. Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir.1992); accord, Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3rd Cir.1988). B Judicial estoppel is an equitable doctrine that encompasses a number of different abuses. One form of judicial estoppel is preclusion of inconsistent positions, which estops a party from gaining advantage by taking one position and later seeking another advantage from an inconsistent position. New Hampshire v. Maine, 532 U.S. 742, 749-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Hamilton, 270 F.3d at 782-85; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir.1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990); 18B Weight & Millee § 4477. The doctrine extends to incompatible statements and positions in different cases. Rissetto, 94 F.3d at 605. Independent of unfair advantage from inconsistent positions, judicial estoppel may be imposed: out of “general consideration of the orderly administration of justice and regard for the dignity of judicial proceedings;” or to “protect against a litigant playing fast and loose with the courts.” Hamilton, 270 F.3d at 782; Russell, 893 F.2d at 1037. Moreover, it may be invoked “to protect the integrity of the bankruptcy process.” Hamilton, 270 F.3d at 785. The Supreme Court, emphasizing that it was “not establishing] inflexible prerequisites,” noted that the decision to apply judicial estoppel is typically informed by whether there was a “clearly inconsistent” position, whether the first position was accepted by a court so that acceptance of a second position would create the perception that one of the courts was misled, and whether an unfair advantage or unfair detriment would result without an estoppel. New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808 (“Additional considerations may inform the doctrine’s application in specific factual contexts.”). The Ninth Circuit requires that the inconsistent position have been “accepted” by the first court. Hamilton, 270 F.3d at 783. In a functional sense, this satisfies the" }, { "docid": "23667626", "title": "", "text": "v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)) (alteration omitted). Some commentators have suggested, however, that judicial estoppel “is not so much a single doctrine as a set of doctrines that have not matured into a fully coherent theory.” 18B Wright & Miller, Fed. Prac. & Proc. Juris. § 4477 (2d ed.2012). The Supreme Court has provided little guidance on the contours of judicial estoppel. It has acknowledged that circumstances where the doctrine may apply “are probably not reducible to any general formulation.” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808. In New Hampshire, however, the Court identified three factors that courts should consider in determining whether the doctrine is applicable in a given case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (citations and quotations omitted). In precedent that predates New Hampshire, we have held that the doctrine of judicial estoppel applies “when a party’s position is tantamount to a knowing misrepresentation to or even fraud on the court.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 1190 (9th Cir.2000) (quoting Johnson, 141 F.3d at 1369 (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996))). A. Relying on Wyler Summit, 235 F.3d at 1190, Monroe LLC contends that we must find “a knowing antecedent misrepresentation by the person or party alleged to be estopped,” and that the district court erred when it held that Frosch’s now-disavowed statements about Monroe’s domicile were knowing misrepresentations. It is unclear when Monroe LLC" }, { "docid": "20930900", "title": "", "text": "the summary judgment order or, alternatively, for relief from that order for an abuse of discretion. See, e.g., United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). Motions to amend “serve the limited function of correcting manifest errors of law or fact.” Id. (internal quotation marks omitted). Here, Jones argues that the district court erred in concluding that judicial estoppel barred his claims. We review the district court’s underlying application of judicial estoppel for an abuse of discretion, affirming “unless it plainly appears that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the proper factors.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1046-47 (8th Cir.2006) (quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32 (1st Cir.2004)). Judicial estoppel is an equitable doctrine that “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting 18 James Wm. Moore et al., Moore’s Federal Practice § 134.30 (3d ed.2000)). While “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” three factors inform a court’s decision about whether it should apply. Id. at 750, 121 S.Ct. 1808. First, a party’s later position must be “clearly inconsistent” with its prior position. Id. Second, a court should consider whether a party has persuaded a court to accept its prior position “so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. (internal quotation marks omitted). Finally, a court should consider whether the party asserting inconsistent positions “would derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.” Id. at 751, 121 S.Ct. 1808. A party who has filed for bankruptcy may be judicially estopped from pursuing a claim not disclosed in his or her" }, { "docid": "22856482", "title": "", "text": "from improperly manipulating the machinery of the judicial system. New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808; United States v. Levasseur, 846 F.2d 786, 792 (1st Cir. 1988). In line with this prophylactic purpose, courts typically invoke judicial estop-pel when a litigant is “playing fast and loose with the courts.” Patriot Cinemas, Inc. v. Gen. Cinema Corp., 834 F.2d 208, 212 (1st Cir.1987) (quoting Scarano v. Cent. R. Co., 203 F.2d 510, 513 (3d Cir. 1953)). The contours of the doctrine are hazy, and there is no mechanical test for determining its applicability. See New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808; Patriot Cinemas, 834 F.2d at 212. Each case tends to turn on its own facts. It is, however, widely agreed that, at a minimum, two conditions must be satisfied before judicial estoppel can attach. See, e.g., Hall, 327 F.3d at 396; Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783-84 (9th Cir.2001); Levinson v. United States, 969 F.2d 260, 264-65 (7th Cir.1992); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982). First, the estopping position and the estopped position must be directly inconsistent, that is, mutually exclusive. See Faigin v. Kelly, 184 F.3d 67, 82 (1st Cir.1999); Levasseur, 846 F.2d at 794. Second, the responsible party must have succeeded in persuading a court to accept its prior position. Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 13 (1st Cir.1999); Gens, 112 F.3d at 572-73. The presence of these elements creates the appearance that either the first court has been misled or the second court will be misled, thus raising the specter of inconsistent determinations and endangering the integrity of the judicial process. See New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808. While it is not a formal element of a claim of judicial estoppel, courts frequently consider a third factor: absent an estop-pel, would the party asserting the inconsistent position derive an unfair advantage? Id. at 751, 121 S.Ct. 1808. Relatedly, courts often inquire as to whether judicial acceptance of a party’s initial position conferred a benefit" }, { "docid": "17460812", "title": "", "text": "the bankruptcy case has been closed, then the trustee will be deemed to have abandoned the claim, and the judicial estoppel doctrine may apply, provided that its various elements are met. This seems consistent with subsequent Seventh Circuit decisions addressing post-bankruptcy lawsuits. See, e.g., Williams, 375 Fed.Appx. at 627. The key question in this case, then, is whether the doctrine of judicial estoppel applies to the facts before me. “Broadly speaking, judicial estoppel precludes a party from abandoning positions after they have prevailed on them in earlier litigation.” Id. (citing Zedner v. United States, 547 U.S. 489, 504, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) and Carnegie v. Household Int’l, Inc., 376 F.3d 656, 660 (7th Cir.2004)). In this bankruptcy context, that principle means that debtors who receive a discharge by hiding or concealing potential legal claims cannot wait until the bankruptcy ends and then pursue them. See Cannon-Stokes, 453 F.3d at 448; Williams, 375 Fed.Appx. at 627. There are three main elements that must be satisfied for the doctrine of judicial estoppel to apply: ... [Fjirst, that “a party’s later position must be clearly inconsistent with its earlier position;” second, that “the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled;” and third, that “the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” In re Knight-Celotex, LLC, 695 F.3d 714, 721-22 (7th Cir.2012) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001));, accord Lujano v. Toum of Cicero, No. 07 C 4822, 2012 WL 4499326, at *11 (N.D.Ill. Sept. 28, 2012). Resolving each of these elements in this case requires me to answer one main question — did the Canens know about their potential mortgage-related claims during the pendency of their 2009 bankruptcy proceedings? If the answer is yes, then (1) failing to disclose those claims is" }, { "docid": "17574310", "title": "", "text": "See Matter of Cassidy, 892 F.2d 637, 641-42 (7th Cir.1990). Judicial estoppel is an equitable concept that prevents parties from playing “fast and loose” with the courts by prevailing twice on opposing theories. Butler v. Vill. of Round Lake Police Dept'., 585 F.3d 1020, 1022 (7th Cir.2009). The doctrine is “invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)). The doctrine’s purpose is to protect the integrity of the judicial process. Johnson v. ExxonMobil Corp., 426 F.3d 887, 891 (7th Cir.2005). Put a bit colorfully, judicial estoppel “protects] the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.” Levinson v. United States, 969 F.2d 260, 264 (7th Cir.1992). Without judicial estoppel, parties’ inconsistent litigating positions could undermine the integrity of the judiciary by “creating] the perception that either the first or the second court was misled * * Moses v. Howard Univ. Hosp., 606 F.3d 789, 792 (D.C.Cir.2010) (quoting Maine, 532 U.S. at 750, 121 S.Ct. 1808). Although the Supreme Court has emphasized that there is no formula for judicial estoppel, it has identified at least three pertinent factors for courts to examine: (1) whether the party’s later position was “clearly inconsistent” with its earlier position; (2) whether the party against whom estoppel is asserted in a later proceeding has succeeded in persuading the court in the earlier proceeding; and (3) whether the party “seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.” Maine, 532 U.S. at 750-51, 121 S.Ct. 1808 (collecting cases and repeating that no rigid formula applies to the analysis); see also Thore v. Howe, 466 F.3d 173, 181 (1st Cir.2006) (“The contours of the judicial estoppel doctrine are not sharply-defined * * Moses, 606 F.3d at 792 (party may not change positions “simply because his interests have changed”). Judicial estoppel does not come into play only when a party attempts to retreat in" }, { "docid": "17460813", "title": "", "text": "... [Fjirst, that “a party’s later position must be clearly inconsistent with its earlier position;” second, that “the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled;” and third, that “the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” In re Knight-Celotex, LLC, 695 F.3d 714, 721-22 (7th Cir.2012) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001));, accord Lujano v. Toum of Cicero, No. 07 C 4822, 2012 WL 4499326, at *11 (N.D.Ill. Sept. 28, 2012). Resolving each of these elements in this case requires me to answer one main question — did the Canens know about their potential mortgage-related claims during the pendency of their 2009 bankruptcy proceedings? If the answer is yes, then (1) failing to disclose those claims is clearly inconsistent with their current lawsuit, (2) allowing the Canens to proceed now would imply that the bankruptcy court had been misled by their failure to disclose, and (3) it would be unfair to allow the Canens to assert claims that they previously denied having in order to get a bankruptcy discharge. If the Canens didn’t know about those claims, however, then none of that applies. And indeed, this issue of whether a post-bankruptcy debtor knew of the undisclosed pre-bankruptcy claims usually is central to the judicial estoppel determination. See, e.g., In re Ortiz, 477 B.R. 714, 722-23 (E.D.Wis.2012); see also Benjamin J. Vernia, Annotation, Judicial Estoppel of Subsequent Action Based on Statements, Positions, or Omissions as to Claim or Interest in Bankruptcy Proceeding, 85 A.L.R. 5th 353 (2007) (cataloguing cases at § 12[e]). So were the Canens aware of their mortgage-related claims when they declared bankruptcy in 2009? In their response to the pending summary judgment motions, they claim that they didn’t fully know about their mortgage-related claims until after the bankruptcy process was" }, { "docid": "18044163", "title": "", "text": "Plaintiff from proceeding. The district court agreed and granted summary judgment in an order dated April 1, 2010. Plaintiff timely appeals. On June 20, 2010, the bankruptcy trustee filed a report that abandoned the trustee’s interest in the pending discrimination action. Plaintiffs unsecured creditors did not object to that action by the trustee. On July 21, 2010, the bankruptcy court closed the reopened case. STANDARDS OF REVIEW We review de novo a grant of summary judgment. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001). We review “the district court’s application of the doctrine of judicial estoppel to the facts of [a] case for an abuse of discretion.” Id. “The district court ... necessarily abuses its discretion when it bases its decision on an erroneous legal standard.... ” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir.2012) (internal quotation marks omitted). DISCUSSION “[J]udieial estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation marks omitted). “[I]ts purpose is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50, 121 S.Ct. 1808 (citation and internal quotation marks omitted). Although judicial estoppel is “probably not reducible to any general formulation of principle, ... several factors typically inform the decision whether to apply the doctrine in a particular case.” Id. at 750, 121 S.Ct. 1808 (citations and internal quotation marks omitted). “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. (internal quotation marks omitted). “A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not" }, { "docid": "11405349", "title": "", "text": "reducible to any general formulation of principle.” New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The Supreme Court has outlined three factors typically used to determine the applicability of judicial estoppel. Id. First, a party’s later position must be “clearly inconsistent with its earlier position.” Id. Second, a party must have succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position would create a perception that either the first or second court was misled. Id. Finally, courts look at whether the party seeking “to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808. In Stallings v. Hussmann, the Eighth Circuit recently explained how to apply these principles in the context of bankruptcy. Stallings, 447 F.3d at 1047. The first factor is satisfied if a cause of action is not raised in a reorganization plan or not otherwise mentioned in the debtors schedules. Id., citing Coastal, 179 F.3d at 208. The second factor is satisfied if the bankruptcy court adopted the debtor’s position. Stallings, 447 F.3d at 1048, citing In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir.2004). This occurs, for example, when the bankruptcy court discharges the claims under the belief that no claims exist outside those cited on the schedules. See Stallings, 447 F.3d at 1048 (discussing cases that stand for this general proposition). This idea is reinforced by bankruptcy courts’ heavy reliance on accurate disclosure statements. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir.2002); see 11 U.S.C. § 521 (listing debtor’s duties). The third factor is satisfied, for example, when a debtor files a bankruptcy petition, then receives a right to sue letter from the Equal Employment Opportunity Commission and fails to amend his schedules to add the lawsuit. Stallings, 447 F.3d at 1048, citing De Leon v. Comcar Indus., 321 F.3d 1289, 1291-92 (11th Cir.2003). The third factor, however, is not satisfied if the debtor’s prior position was" }, { "docid": "14667240", "title": "", "text": "quotations and citations omitted). “The circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.” Id. at 750, 121 S.Ct. 1808. Three factors, while not “an exhaustive formula for determining the applicability of judicial estoppel,” aid a court in determining whether to apply the doctrine. Id. at 751, 121 S.Ct. 1808. The three factors are as follows: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotations and citations omitted). In the bankruptcy context, a party may be judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements. Coastal, 179 F.3d at 208. A debt- or’s failure to list a claim in the “mandatory bankruptcy filings is tantamount to a representation that no such claim existed.” In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.2004). For example, in United States ex rel. Gebert v. Transp. Admin. Servs., 260 F.3d 909 (8th Cir.2001), two former employees of a company who were terminated from their job filed a qui tarn lawsuit against the company. Id. at 912. The company subsequently filed a motion for summary judgment, alleging that the claim was prohibited under judicial estoppel principles because the two employees, who were married, failed to list a claim against the company as an asset in their prior bankruptcy proceeding in which the bankruptcy court discharged" }, { "docid": "18044164", "title": "", "text": "(internal quotation marks omitted). “[I]ts purpose is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50, 121 S.Ct. 1808 (citation and internal quotation marks omitted). Although judicial estoppel is “probably not reducible to any general formulation of principle, ... several factors typically inform the decision whether to apply the doctrine in a particular case.” Id. at 750, 121 S.Ct. 1808 (citations and internal quotation marks omitted). “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. (internal quotation marks omitted). “A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808. “In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts.” Id. In the bankruptcy context, the federal courts have developed a basic default rule: If a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the action. See, e.g., Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir.1993) (“Conceal your claims; get rid of your creditors on the cheap, and start over with a bundle of rights. This is a palpable fraud that the court will not tolerate, even passively.”); Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir.1992) (holding that “[fjailure to give the required notice [to the bankruptcy court] estops [the plaintiff-debtor] and justifies the grant of summary judgment to the defendants”). The reason is that the plaintiff-debtor represented in the" }, { "docid": "21408311", "title": "", "text": "to disclose a pending legal claim as “a palpable fraud that the court will not tolerate, even passively.” Id. at 571. Seeking to preserve the reliability of bankruptcy disclosures for the benefit of creditors, the court reasoned the debtor “having obtained judicial relief on the representation that no claims existed, can not now resurrect them and obtain relief on the opposite basis.... Indeed, defendants may have a windfall. However, [the failure to disclose] is an unacceptable abuse of judicial proceedings.” Id.; see also Burnes, 291 F.3d at 1286 (explaining that because judicial estoppel is designed to protect the judicial process rather than litigants, a party’s detrimental reliance on a debtor’s inconsistent position is unnecessary) (citing cases). Yet another example is the Fifth Circuit’s decision in Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir.2005). In that case, the court rejected the debtor’s argument that her failure to inform the bankruptcy court of her discrimination claims was inadvertent because her- bankruptcy attorney told her such claims were “irrelevant.” Id. at 601. The court explained that to establish inadvertence, the debtor had to prove “either that she did not know of the inconsistent position or that she had no motive to conceal it from the court.” Id. at 600-01. The court opined that “[j]udicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based on that undisclosed asset.” Id. at 600; accord Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9th Cir.2001) (“In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.”) (citing cases). 2. Given the overwhelming weight of authority, the district court’s decision to employ judicial estoppel against Gardner under the circumstances presented is undoubtedly sound. The sole circuit court case on which Gardner relies to any extent is not to the contrary. In Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894 (6th Cir.2004), the" }, { "docid": "14667241", "title": "", "text": "opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotations and citations omitted). In the bankruptcy context, a party may be judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements. Coastal, 179 F.3d at 208. A debt- or’s failure to list a claim in the “mandatory bankruptcy filings is tantamount to a representation that no such claim existed.” In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.2004). For example, in United States ex rel. Gebert v. Transp. Admin. Servs., 260 F.3d 909 (8th Cir.2001), two former employees of a company who were terminated from their job filed a qui tarn lawsuit against the company. Id. at 912. The company subsequently filed a motion for summary judgment, alleging that the claim was prohibited under judicial estoppel principles because the two employees, who were married, failed to list a claim against the company as an asset in their prior bankruptcy proceeding in which the bankruptcy court discharged them from bankruptcy. Id. at 913. We upheld the district court’s finding that the employees were judicially estopped from asserting the claim against the company because they had represented to the bankruptcy court, through their failure to disclose the qui tarn claim, that they did not possess the claim. Id. at 917. The second New Hampshire factor requires that the bankruptcy court have adopted the debtor’s position. Superior; 374 F.3d at 335. For example, where the bankruptcy court issues a “no asset” discharge, the bankruptcy court has effectively adopted the debtor’s position. Id. Similarly, when a bankruptcy court discharges the debtor’s debts based on information the debtor provided in the schedules but thereafter vacates and dismisses the debt- or’s bankruptcy after learning that the debtor was concealing claims, the court’s original discharge of the debt is sufficient acceptance of the debtor’s position to provide a basis for judicial estoppel. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir.2001). Under the final New Hampshire factor, the debtor’s non-disclosure of the claim" }, { "docid": "8259663", "title": "", "text": "statements made because of inadvertence or mistake generally do not justify application of judicial estoppel); see also Burnes v. Perneo Aeroplex, Inc., 291 F.3d at 1286 (noting that “the doctrine of judicial estoppel applies in situations involving intentional contradictions, not simple error or inadvertence”). First, Mr. Moses offers no competent evidence to support his inadvertence claim. See Fed. R.CrvP. 56(e)(2) (when party moves for summary judgment, non-movant’s opposition must be supported by affidavits, declarations or other competent evidence; mere statements in pleadings will not do). Second, “deliberate or intentional manipulation [of the judicial process] can be inferred from the record ... where the debtor has knowledge of the undisclosed claims and has motive for concealment.” Barger v. City of Cartersville, 348 F.3d at 1294 (internal quotation marks and citation omitted); see also In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir.1999). Here, all acknowledge that Mr. Moses had knowledge of this lawsuit when he initiated both bankruptcy proceedings, see PL’s Opp. ¶ 4, and he certainly had a financial motive for failing to disclose his claims. See De Leon v. Comcar Industries, Inc., 321 F.3d 1289, 1291 (11th Cir.2003); see also Jethroe v. Omnova Solutions, Inc., 412 F.3d at 601. Lastly, there can be little doubt that the bankruptcy courts were misled by Mr. Moses’ inaccurate statements, and that Mr. Moses benefitted by his failure to disclose. See New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (judicial estoppel appropriate when a party persuades a court to accept his earlier position); see also id. at 751, 121 S.Ct. 1808 (inconsistent statements threaten judicial integrity only when a party succeeds in the prior proceeding). There is no evidence to suggest that the bankruptcy courts failed to rely on the inaccurate statements contained in Mr. Moses’ 2003 and 2007 Statements of Financial Affairs. See Autos, Inc. v. Gowin, 244 Fed.Appx. 885, 891 (10th Cir.2007) (finding, where plaintiff submitted false bankruptcy forms, that bankruptcy court relied on those forms). Moreover, Mr. Moses obtained a discharge of unsecured debts in the amount of approximately $20,000 as a result of the" }, { "docid": "8259659", "title": "", "text": "New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (quoting Allen v. Zurich Insurance Co., 667 F.2d 1162, 1166 (4th Cir.1982)). The Supreme Court observed, however, that courts generally consider three factors when determining whether to apply the doctrine of judicial estoppel in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. ... Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” [Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982) ].... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808. These factors, the Court emphasized, are not “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.” Id. at 751, 121 S.Ct. 1808. Rather, they serve as guideposts and “[additional considerations may inform the doctrine’s application in specific factual contexts.” Id. Many courts have applied the doctrine of judicial estoppel to bar plaintiffs from pursuing claims — including employment discrimination claims — because those plaintiffs failed to disclose the existence of their claims to bankruptcy courts in prior or parallel bankruptcy proceedings. See Becker v. Verizon North, Inc., No. 06-2956, 2007 WL 1224039, at *4 (7th Cir. Apr. 25, 2007) (plaintiff/debtor failed to disclose employment discrimination claims to bankruptcy court; court affirmed the district court’s grant of summary judgment on judicial estoppel and standing grounds); Tyler v. Federal Express Corp., 206 Fed.Appx. 500, 500 (6th Cir.2006) (affirming on judicial estoppel grounds); Baker v. Dep’t of Interior, 125 Fed.Appx. 151, 151 (9th Cir.2005) (same); Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir.2005) (“Judicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues" }, { "docid": "2543569", "title": "", "text": "prevents him from pursuing a racial discrimination claim in the District court, having sworn to the Bankruptcy court that no claims existed. (Doc. 41-1, p. 3). 1. Statement of the Law “Judicial estoppel is an equitable doctrine invoked at a court’s discretion.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (citing New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). This doctrine “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New Hampshire, 532 U.S. at 749, 121 S.Ct. 1808 (internal quotations omitted). Although there are no “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel,” the U.S. Supreme Court has elucidated several factors which typically inform the decision whether or not to apply judicial estoppel in a particular case. Id. at 751, 121 S.Ct. 1808. “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. at 750, 121 S.Ct. 1808 (string citation omitted). “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled ... ’ ” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)). “[T]hird ... is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808 Courts in the Eleventh Circuit consider two additional factors in applying the doctrine of judicial estoppel to a particular case. “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002). However, these two factors are not “inflexible or exhaustive,”" }, { "docid": "11405348", "title": "", "text": "Cir.2006), citing Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 n. 6 (8th Cir.1987), and prevent parties from playing “fast and loose with the courts to suit the exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999). A court invokes judicial estoppel when a party abuses the judicial process by making a knowing misrepresentation to the court or tries to perpetrate a fraud upon the court. Id Accordingly, judicial estoppel prevents a person who states facts under oath from denying those facts in a second suit, even if the parties in the second suit are not the same as the first. Monterey Dev. Corp. v. Lawyer’s Title Ins. Corp., 4 F.3d 605, 609 (8th Cir.1993). Judicial estoppel, however, is an extraordinary remedy and should only be applied when a party’s inconsistent behavior will result in the miscarriage of justice. Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir.1996). The Supreme Court has stated that judicial estoppel is a flexible doctrine that is “probably not reducible to any general formulation of principle.” New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The Supreme Court has outlined three factors typically used to determine the applicability of judicial estoppel. Id. First, a party’s later position must be “clearly inconsistent with its earlier position.” Id. Second, a party must have succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position would create a perception that either the first or second court was misled. Id. Finally, courts look at whether the party seeking “to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808. In Stallings v. Hussmann, the Eighth Circuit recently explained how to apply these principles in the context of bankruptcy. Stallings, 447 F.3d at 1047. The first factor is satisfied if a cause of action is not raised in a reorganization plan or not otherwise mentioned in the debtors" }, { "docid": "8259658", "title": "", "text": "estoppel is an equitable doctrine that prevents parties from abusing the legal system by taking a position in one legal proceeding that is inconsistent with a position taken in a later proceeding. See New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Elemary v. Holzmann A.G., 533 F.Supp.2d 116, 125 n. 6 (D.D.C.2008). The doctrine “protectfs] the integrity of the judicial process ... by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50, 121 S.Ct. 1808; see also Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C.Cir.1980) (purpose of the doctrine is to prevent “improper use of judicial machinery”); Scarano v. Central Rail Co. of New Jersey, 203 F.2d 510, 513 (3d Cir.1953) (observing that the application of judicial estoppel prevents the use of “intentional self-contradiction ... as a means of obtaining an unfair advantage”). As the Supreme Court recently explained, “ ‘[t]he circumstances under which judicial estop-pel may appropriately be invoked are probably not reducible to any general formulation of principle.’ ” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (quoting Allen v. Zurich Insurance Co., 667 F.2d 1162, 1166 (4th Cir.1982)). The Supreme Court observed, however, that courts generally consider three factors when determining whether to apply the doctrine of judicial estoppel in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. ... Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” [Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982) ].... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808. These factors, the Court emphasized, are not “inflexible prerequisites or an exhaustive formula for" }, { "docid": "14667242", "title": "", "text": "them from bankruptcy. Id. at 913. We upheld the district court’s finding that the employees were judicially estopped from asserting the claim against the company because they had represented to the bankruptcy court, through their failure to disclose the qui tarn claim, that they did not possess the claim. Id. at 917. The second New Hampshire factor requires that the bankruptcy court have adopted the debtor’s position. Superior; 374 F.3d at 335. For example, where the bankruptcy court issues a “no asset” discharge, the bankruptcy court has effectively adopted the debtor’s position. Id. Similarly, when a bankruptcy court discharges the debtor’s debts based on information the debtor provided in the schedules but thereafter vacates and dismisses the debt- or’s bankruptcy after learning that the debtor was concealing claims, the court’s original discharge of the debt is sufficient acceptance of the debtor’s position to provide a basis for judicial estoppel. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir.2001). Under the final New Hampshire factor, the debtor’s non-disclosure of the claim must not be inadvertent and must result in the debtor gaining an unfair advantage. Superior, 374 F.3d at 335-36. Three examples illustrate the third factor. First, where a debtor files suit against a party, alleging that the party was responsible for the debtor filing bankruptcy, but failed to refer to the claim in any of its bankruptcy petitions, the debtor is judicially estopped from subsequently asserting the pre-petition claim that was not disclosed to the bankruptcy court. Payless Wholesale Distrib., Inc. v. Alberto Culver, Inc., 989 F.2d 570, 571 (1st Cir.1993); see also Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir.2003) (prohibiting an employee who filed for bankruptcy because a demotion resulted in less pay from filing suit against her employer for violation of the FMLA because the employee failed to list the discrimination suit as an asset). The court will not allow the debtor to conceal its claims, get rid of its creditors “on the cheap,” and start over with a “bundle of rights.” Payless, 989 F.2d at 571. Because the debtor" } ]

[ { "docid": "12847542", "title": "", "text": "issues exist, we are required to resolve all ambiguities in favor of the party against whom summary judgment is sought and to draw all permissible inferences in that party’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This remedy, which precludes a trial, is properly granted only when no rational jury could find in favor of the non-moving party. Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 133 (2d Cir.), cert. denied, -U.S.-, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000). II. Absolute Legislative Immunity As a preliminary matter, the East Hartford Board of Education contends that all counts against it should be dismissed based upon the doctrine of legislative immunity. This defense, however, is not available to a board of education. Absolute legislative immunity is a doctrine that protects individual legislators from liability for their legislative activities. Bogan v. Scott-Harris, 523 U.S. 44, 48-54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999). That doctrine does not protect the governing bodies on which they serve. Morris, 196 F.3d at 111; Minton v. St. Bernard Parish School Board, 803 F.2d 129, 133 (5th Cir.1986). Therefore, the Board of Education cannot assert legislative immunity as an absolute defense to plaintiffs complaint. III. Failure to Comply with C.G.S.A. § 7-465 Defendants next assert that all state-law counts of plaintiffs complaint should be dismissed because plaintiff failed to comply with the pre-filing notice requirements of C.G.S.A. § 7-465(a), which provides in relevant part: No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. (Emphasis added). Plaintiff argues that his action is not one for personal physical" } ]

[ { "docid": "14201978", "title": "", "text": "it turns on a matter of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (“An appellate court reviewing the denial of.. .immunity need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs allegations actually state a claim. All it need determine is a question of law....” Id. at 528, 105 S.Ct. 2806.). We review de novo the district court’s denial of summary judgment on qualified immunity grounds. Martinez v. Simonetti, 202 F.3d 625, 631 (2d Cir.2000). I. Legislative Immunity Legislators are entitled to absolute immunity from civil liability for their legislative activities. This Circuit has previously held that absolute legislative immunity for Section 1983 actions extends to local legislators. See e.g., Carlos v. Santos, 123 F.3d 61, 66 (2d Cir.1997). We consider whether the purported actions of the Board members are protected by the doctrine of legislative immunity. The test for determining whether an act is legislative “turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). Under this functional test, immunity depends on the nature of the act itself, not the identity of the actor performing it. See Forrester v. White, 484 U.S. 219, 224, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). The first step in our inquiry is whether the Board members’ actions were legislative in function. In order for legislative immunity to attach, the act in question must be taken “in the sphere of legitimate legislative activity.” Bogan, 523 U.S. at 54, 118 S.Ct. 966 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Discretionary personnel decisions, even if undertaken by public officials who otherwise are entitled to immunity, do not give rise to immunity be cause such decisionmaking is no different in substance from that which is enjoyed by other actors. See Forrester, 484 U.S. at 229-30, 108 S.Ct. 538. In so holding, we do not mean to suggest that decisions" }, { "docid": "18770634", "title": "", "text": "Supervisor Also relying on Forrester, plaintiffs assert that Zwirn, as chief executive of the Town, is not a legislator and therefore not entitled to assert legislative immunity. (Pls.Mem. in Opp’n at 24.) Presumably plaintiffs are analogizing the dictum of Forrester that state executive officials are not entitled to absolute immunity for their official acts to the same extent as the President of the United States. See 484 U.S. at 226, 108 S.Ct. at 543-44. However, the Municipal defendants do not assert Zwim’s immunity as an executive, but only with respect to his participation in approving legislated Board resolutions. (Mun. Defs.Mem. of Law at 21.) Although defendant Zwirn is chief executive of the Town, he has legislative responsibilities in his dual capacity as a Town Board member. N.Y.Town Law §§ 60, 63 (McKinney 1987); see also Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir.1983) (holding that a mayor, although the executive officer, may still have legislative functions); Orange, 830 F.Supp. at 706 (county executive entitled to legislative immunity for act of signing resolution eliminating county civil service positions). Active participation in the legislative process entitles an executive to absolute immunity. Aitchison, 708 F.2d at 99. Zwirn is therefore entitled to legislative immunity and therefore the § 1983 claims against him personally must be dismissed. c. Town Legislative Aides The Court holds that Middlemark, Biamonte, and Nedelka are also extended legislative immunity in their individual capacities for the § 1983 claims. As noted above, these three individuals are named in the complaint as a result of their capacity as high-level advisors to the supervisor and Board with respect to the development of the planned elimination of the plaintiffs’ positions by Board resolution. (Compl. ¶¶57, 58.) The official immunity available to legislators is extended to legislative aides “insofar as the conduct of the [aide] would be a protected legislative act if performed by the Member himself.” Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972). This “legislative aide” immunity has been extended to both state and local government officials. Hudson v. Burke, 617 F.Supp. 1501," }, { "docid": "2141005", "title": "", "text": "absolute judicial immunity has been extended to non-judicial officers who perform “quasi-judicial” duties. [FN5] [Citations omitted.] Quasi-judicial immunity extends to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune. [Citations omitted.] FN5. The United States Supreme Court has recognized the need for government officials to be able to make impartial decisions without the threat of personal liability for actions taken pursuant to their official duties. See, e.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)(agency attorney); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(judge); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)(legislators). The Supreme Court has endorsed a “functional” approach in determining whether an official is entitled to absolute immunity. Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542-43, 98 L.Ed.2d 555 (1988); Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547(1991). Under this approach, a court “looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209(1993) (quoting Forrester, 484 U.S. at 229, 108 S.Ct. at 545). For example, a prosecutor who undertakes acts in the preparation or initiation of judicial proceedings is entitled to absolute immunity. Id. On the other hand, when a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available. Id. Bush, 38 F.3d at 847. See also Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (“[Ijmmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.”). The United States Supreme Court has stated that in applying the functional approach to immunity issues, a court must not only examine the nature of the functions with which the official has been" }, { "docid": "6685027", "title": "", "text": "town board members. Thus, all of the allegations except (4) and (5) relate to actions that were not taken under color of law. Therefore, they may not form the basis of a claim, under § 1983. They were properly dismissed. 2. Legislative Immunity Having determined that the plaintiffs’ allegation (4) and (5) were performed under color of state law, our next inquiry is whether these alleged misdeeds come within the legislative immunity exception to § 1983. There has long been recognized- an absolute legislative immunity exception to § 1983 liability for individuals. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 96 L.Ed. 1019 (1961). In Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir.1992), and United States v. City of Yonkers, 856 F.2d 444 (2d Cir.1988), rev’d on other grounds sub nom. Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990), we noted in dicta that at least nine other federal circuit courts have held that the absolute legislative immunity doctrine applies to local legislators, see Goldberg, 973 F.2d at 72; City of Yonkers, 856 F.2d at 456, and in Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214 (2d Cir.1994), we assumed that it did, see id at 1224. We therefore now explicitly hold that the doctrine of absolute legislative immunity under § 1983 applies to local legislators. We next ask whether acts (4) and (5)specifically come within the protection of that doctrine. “In determining whether absolute immunity obtains, we apply a ‘functional approach,’ looking to the function being performed rather than to the office or identity of the defendant.” Hill v. City of New York, 45 F.3d 653, 660 (2d Cir.1995); accord Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542-43, 98 L.Ed.2d 555 (1988); Pinaud v. County of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995). The facts of Tenney are quite similar to plaintiffs’ allegation (5). In Tenney, the plaintiff alleged that members of a committee of the California Legislature, the Senate Faeb-Finding Committee on Un-American Activities, had held a hearing “not for a legislative purpose,”" }, { "docid": "8835228", "title": "", "text": "of an action pursuant to M.G.L. c. 30A, § 14 does not, absent circumstances not applicable here, serve to stay enforcement of the agency decision. In short, any failure by the State Board to provide the plaintiff with constitutionally sufficient notice and hearing cannot be the basis for a due process claim under § 1983 against the City and its officials. Dismissal of the procedural due process claim also is appropriate because adequate post-deprivation remedies exist to address plaintiffs charges. The First Circuit has observed that a properly-pleaded procedural due process claim must allege not only that plaintiff “was deprived of constitutionally protected property because of defendants’ actions, [but also] that the deprivation occurred without due process of law.” Roy v. City of Augusta, Maine, 712 F.2d 1517, 1522 (1st Cir.1983). Although plaintiff alleges that she was deprived of constitutionally-protected property, she has not alleged that available remedies under Massachusetts law are inadequate to redress the deprivation. See Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 999 (1st Cir.1992). The Supreme Court has explained the foregoing principle as follows: [t]he constitutional deprivation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for the erroneous deprivations provided by statute or tort law. Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (internal citations omitted). Similarly, the First Circuit has reasoned that: [i]f the federal courts were to entertain civil rights complaints based on procedural deprivations for which adequate state remedies exist, every disgruntled applicant could move [its procedural grievances] into the federal courts ...[,] any meaningful separation between federal and state jurisdiction would cease to hold and forum shopping would become the order of the day. Rumford Pharmacy, 970 F.2d" }, { "docid": "8835229", "title": "", "text": "has explained the foregoing principle as follows: [t]he constitutional deprivation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for the erroneous deprivations provided by statute or tort law. Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (internal citations omitted). Similarly, the First Circuit has reasoned that: [i]f the federal courts were to entertain civil rights complaints based on procedural deprivations for which adequate state remedies exist, every disgruntled applicant could move [its procedural grievances] into the federal courts ...[,] any meaningful separation between federal and state jurisdiction would cease to hold and forum shopping would become the order of the day. Rumford Pharmacy, 970 F.2d at 999 (internal quotation omitted); see also Roy, 712 F.2d at 1522-23. Plaintiff here has not and cannot allege that available remedies under Massachusetts law are inadequate to redress any deprivation caused by the City officials’ issuance and execution of the demolition order. That is because M.G.L. c. 143, § 10 and c. 139, § 2 permit an aggrieved property owner to appeal an order to remove a dangerous structure to the Superior Court for a jury trial in which the jury may affirm, annul or alter the demolition order. If the jury annuls the demolition order, the successful plaintiff is entitled to recover damages and costs. See M.G.L. c. 139, § 2. Inasmuch as plaintiff has, in fact, filed a separate (and ongoing) civil action in the Superior Court pursuant to the remedial statute, the post-deprivation remedy afforded by M.G.L. c. 143, § 10 precludes plaintiffs procedural due process claims at this juncture. B. Substantive Due Process Unlike a procedural due process claim, in which the Court’s focus is on “how” and by what" }, { "docid": "9939282", "title": "", "text": "speech violates clearly established law of which a reasonable person would have known, the district court further rejected the defense of qualified immunity. The Caucus leaders interloeutorily appeal from the district court’s order denying them summary judgment based on absolute and qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). II Brown, Gaspard, and Snyder contend that they are entitled to absolute legislative immunity for their decision to demote and replace Chateaubriand. The Supreme Court “has generally been quite sparing in its recognition of claims to absolute official immunity.” Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). It is established, however, that “state legislators enjoy common-law immunity from liability for then-legislative acts ... that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause.” Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980) (citing Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (section 1988 does not abrogate the common law immunity of state legislators)). To determine whether legislative immunity applies, courts look to “the nature of the function performed, not the identity of the actor who performed it.” Forrester, 484 U.S. at 229, 108 S.Ct. at 545. Absolute immunity applies only when legislators act in their legislative capacities, not in their administrative or executive capacities. Tenney, 341 U.S. at 379, 71 S.Ct. at 789-90. We must resolve whether Chateaubriand’s demotion and replacement was a legislative act, to which immunity attaches, or an administrative act, to which it does not. “In this circuit, we determine whether a particular act is legislative by considering two primary factors. First, does the act involve ad hoe decisionmaking, or the formulation of policy? Second, does the act apply to a few individuals, or the public at large?” Chappell v. Robbins, 73 F.3d 918, 920 (9th Cir.1996) (citing Trevino v. Gates, 23 F.3d 1480," }, { "docid": "2474851", "title": "", "text": "civil service board or state circuit court. Florida provided a means of review for procedural irregularities by the Board of County Commissioners. Cf., e.g., Elder v. Highlands County Bd. of County Comm’rs, 497 So.2d 1334 (Fla.Dist.Ct.App.1986); Seminole County Bd. of County Comm’rs v. Long, 422 So.2d 938 (Fla.Dist.Ct.App.1982); West v. Board of County Comm’rs, Monroe County, 373 So.2d 83 (Fla.Dist.Ct.App.1979). McKinney did not claim that his state remedies were inadequate. Although “overlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983,” a violation of federal procedural due process is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide [procedural] due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law. Zinermon v. Burch, 494 U.S. 113, 123, 125, 110 S.Ct. 975, 982, 983, 108 L.Ed.2d 100 (1990). Where an adequate state law remedy is provided to vindicate federal due process rights, there can be no denial of procedural due process, and thus no constitutional violation. Assuming McKinney’s allegations to be true, he is the victim of an illegal kangaroo court. Since such a proceeding was admit tedly random and unauthorized, and since the state provided him with an adequate remedy, McKinney has no federal claim. See Parratt, 451 U.S. at 542, 101 S.Ct. at 1916 (“[T]he existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.” (quoting Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir.1975))). As the High Court has observed, “The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent" }, { "docid": "6894872", "title": "", "text": "against Hudel-son as well. . Ms. Doyle and Mr. Konold were at-will employees. Neither individual has alleged additional facts that demonstrate their terminations implicated a protected property interest. Indeed, before this court, they do not argue that the conduct of the DCFS employees or tire private entities deprived them of a protected property interest. Consequently, we limit our discussion to Ms. Doyle's and Mr. Konold's claims concerning the deprivation of a protected liberty interest. . See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (\"[T]he deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.''). . \"As a class judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well-defined.\" Forrester v. White, 484 U.S. 219, 223, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Termed absolute or judicial immunity, the doctrine shields members of the judiciary from liability in certain instances. See Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir.2001) (citing Mi-reles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). The courts also have recognized the doctrine's applicability to government officials exercising quasi-judicial functions comparable to those of a judicial officer. See Butz v. Economou, 438 U.S. 478, 5 13-14, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 521 (7th Cir.2001)." }, { "docid": "6894871", "title": "", "text": "their briefs to this court, none of the DCFS employees urge that we affirm the district courts’ judgments on this ground. Indeed, their briefs are devoid of any reference to the Eleventh Amendment or sovereign immunity principles. During oral argument, we asked counsel for the DCFS employees to clarify his clients’ position on this matter. He stated that his clients disavowed any reliance on the Eleventh Amendment, conceding that sovereign immunity principles generally do not bar actions against state officials in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Indeed, when read fairly, the complaints in this case do not mount a generalized attack on the state agency; rather, they submit that the manner in which the individual DCFS employees administered the reporting and investigatory scheme deprived Mr. Konold and Ms. Doyle of due process of law. Given these circumstances, we do not address in any further detail this portion of the Southern District's judgment. . When referencing claims against Central Baptist, we address allegations against Hudel-son as well. . Ms. Doyle and Mr. Konold were at-will employees. Neither individual has alleged additional facts that demonstrate their terminations implicated a protected property interest. Indeed, before this court, they do not argue that the conduct of the DCFS employees or tire private entities deprived them of a protected property interest. Consequently, we limit our discussion to Ms. Doyle's and Mr. Konold's claims concerning the deprivation of a protected liberty interest. . See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (\"[T]he deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.''). . \"As a class judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well-defined.\" Forrester v. White, 484 U.S. 219, 223, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Termed absolute or judicial immunity, the doctrine shields members of the judiciary from liability in certain instances." }, { "docid": "23315474", "title": "", "text": "616-17, 92 S.Ct. at 2622-23) (internal quotation marks omitted). It noted, however, that “[t]he complaint ... does not distinguish between the activities of the Members and those of the Chief Counsel,” thereby distinguishing Dombrowski v. Eastland. Id. Appellant argues that his complaint does distinguish between the activities of Hernandez-Agosto and Antonio-Rigau, on the one hand, and Perez-Viera on the other. Nevertheless, the relevant allegation in the complaint — that chief counsel Perez-Viera presented information at the Committee hearings, knowing it to be false and misleading — is part and parcel of the parallel allegation that all legislator-defendants used the Hearings to disseminate information about Romero-Barcelo, knowing it to be false or misleading. Thus, in applying the doctrine of absolute legislative immunity to these facts, we draw no distinction between the legislator-defendants and Committee counsel. B. Civil Rights Claims We next consider the claims not barred by absolute legislative immunity. 1. Section 1983 “An actionable section 1983 claim must allege facts sufficient to support a determination ‘(i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States.’ ” Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st Cir.1992) (quoting Chongris v. Board of Appeals, 811 F.2d 36, 40 (1st Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987)). a. Procedural Due Process A viable procedural due process claim must demonstrate a “deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ ... without due process of law.” Lowe v. Scott, 959 F.2d 323, 340 (1st Cir.1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 5.Ct. 975, 983, 108 L.Ed.2d 100 (1990)) (internal quotation marks omitted). i. Deprivation of Liberty Interest Romero-Barcelo alleges that the defamatory statements by defendants deprived him of a “liberty” interest in his good name and reputation. Barcelo, 876 F.Supp. at 1344. The Supreme Court has made it clear that an actionable deprivation of a liberty interest in one’s reputation “must" }, { "docid": "14074655", "title": "", "text": "as a complete shield to claims for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir.1999). The critical inquiry focuses on the nature of the act being performed and not on the status of the individual performing it. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (“It is the nature of the function performed, not the identity of the actor who performed it, that informed our immunity analysis.”); see also Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (quoting Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)) (“[Absolute immunity flows not from rank or title or ‘location within the Government,’ ... but from the nature of the responsibilities of the individual official.”). Thus, judicial immunity may extend to parole board officials who serve in a quasi-adjudicative function in deciding whether to grant, deny, or revoke parole, see Montero, 171 F.3d 757, but not to a judge who performs administrative, legislative, or executive functions, such as discharging an employee, see Forrester, 484 U.S. at 229, 108 S.Ct. 538. Under this functional approach, the Court examines “the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and ... seek[s] to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Id. at 224, 108 S.Ct. 538. To facilitate this analysis, the Second Circuit has extracted a two-part test from the Supreme Court’s decision in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), to determine whether a judge (or other official performing a judicial function) is enti-tied to absolute immunity: “First, a judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction ... [;][s]econd, a judge is immune only for actions performed in his judicial" }, { "docid": "6894860", "title": "", "text": "these decisions simply do not give an official “fair warning” that the manner in which the DCFS employees administered the scheme violated the clearly established rights of Ms. Doyle or Mr. Konold. See Hope, — U.S. at-, 122 S.Ct. at 2516. Consequently, the district courts correctly dismissed the claims against the DCFS employees alleged to have participated personally in this constitutional.violation. a Two of the DCFS employees involved in the constitutional deprivation, Chief ALJs Franklin and Kennedy, raise an immunity defense distinct from that of their colleagues. More precisely, Chief ALJs Kennedy and Franklin submit that the doctrine of absolute shields them from suit over the docketing decisions that contributed to the constitutional deprivation. As the proponents of the doctrine's applicability, the Chief ALJs bear \"the burden of showing that such immunity is justified for the function in question.\" Burns v. Reed, 500 U.S. 478, 486, 111. S.Ct. 1934, 114 L.Ed.2d 547 (1991). To determine whether absolute immunity attaches to the particular conduct of a judicial officer, we employ a functional approach. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 521 (7th Cir.2001). In performing this inquiry, we are not concerned with the label attached to the position in question; rather, we examine the nature of the function the individual performs and the effect \"that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.\" Forrester, 484 U.S. at 224, 108 S.Ct. 538; Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir.1989). When a judicial officer engages in a purely administrative function, such as terminating an employee, we are less concerned that the threat of liability will \"create perverse incentives that operate to inhibit [the] official[ I~ in the performance of [his] duties.\" Forrester, 484 U.S. at 223, 108 S.Ct. 538 (emphasis in original). In contrast, when a government official serves in a judicial or quasi-judicial capacity, the principles underlying the doctrine of absolute immunity are strongly implicated. See, e.g., id. at 226, 108 S.Ct." }, { "docid": "19757225", "title": "", "text": "vote on the budgetary resolutions, but also any discussions the Council members may have held, and any agreements they may have made, regarding the new budget in the months preceding the actual vote. That the discussions and agreements occurred in secret does not strip these activities of their legislative function. Therefore, to the extent that Plaintiffs’ §§ 1983, 1985, and 1986 claims relate to the legislative termination of the budget lines for their positions, the denial of legislative immunity was incorrect as a matter of law and must therefore be reversed. This conclusion does not automatically dispose of the entirety of Plaintiffs’ claims against the Council members, however. As we held in Jessen v. Town of Eastchester, 114 F.3d 7 (2d Cir.1997) (per curiam), absolute legislative immunity does not protect legislators against a claim of an administrative firing, even if the employee’s position was later abolished pur suant to a legislative act. See id. at 8 (“Even assuming, without deciding, that the elimination of Jessen’s position was a legislative act, his earlier termination from a position which then, at least briefly, remained open was an administrative act that legislative immunity does not protect.”). A personnel decision is administrative in nature if it is directed at a particular employee or employees, and is not part of a broader legislative policy. Cf. Bogan, 523 U.S. at 55-56,118 S.Ct. 966 (“The ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office .... Thus, petitioners’ activities were undoubtedly legislative.” (emphasis added)). Administrative “personnel decisions, even if undertaken by public officials who otherwise are entitled to immunity, do not give rise to [legislative] immunity because such decisionmaking is no different in substance from that which is enjoyed by other actors.” Harhay, 323 F.3d at 210-11. Thus in Harhay, we concluded that the town board members were not absolutely immune for their" }, { "docid": "17126895", "title": "", "text": "entitlement to absolute legislative immunity, defendants moved to dismiss the complaint. The district court denied the motion. Defendants appealed. On appeal, defendants argue that the elimination of Jesseris position was a legislative act for which they are entitled to absolute immunity from suit. We need not, and expressly do not, address the merits of this contention. The complaint alleges that four days before the Town Board passed the motion abolishing Jesseris position, Cavanaugh, acting pursuant to a conspiracy with the other defendants, told Jessen that he was fired and ordered him to leave his office. The injury inflicted on Jessen by the firing thus preceded the Town Board’s vote to eliminate his position. Even assuming, without deciding, that the elimination of Jesseris position was a legislative act, his earlier termination from a position which then, at least briefly, remained open was an administrative act that legislative immunity does not protect. See Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988). Because the complaint alleges that defendants fired Jessen before eliminating his position through any legislative action, the district court properly denied their motion to dismiss. We therefore affirm its ruling. We express no view on whether the alleged acts in fact occurred, whether they gave rise to any liability, whether the subsequent elimination of Jessen’s position by the Town Board was shielded by legislative immunity, or whether such subsequent legislative elimination limits any damages Jessen may recover by reason of the earlier firing." }, { "docid": "2123497", "title": "", "text": "If the non-movant cannot make such a showing, after adequate time for discovery, summary judgment is mandated. Id. at 322, 106 S.Ct. 2505. The Court will consider the parties’ motions for summary judgment in light of these standards. III. Discussion A. Motion for Summary Judgment on Grounds of Legislative Immunity The well settled doctrine of absolute legislative immunity bars actions against legislators on the basis of their roles in enacting or signing legislation. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731-34, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). “The Supreme Court, however, ‘has been careful not to extend the scope of [legislative immunity] protection further than its purposes require,’ and the government official seeking immunity bears the burden of showing that an exemption from personal liability is justified.” Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248, 1251 (10th Cir.1998)(quoting Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Legislative immunity applies to legislators engaged “in the sphere of legitimate legislative activity,” Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and protects legislators “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). Legislative immunity applies to § 1983 actions seeking damages and declaratory or injunctive relief. Consumers Union, 446 U.S. at 732, 100 S.Ct. 1967. Moreover, officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions. Id. at 731-734, 100 S.Ct. 1967. To determine whether a particular task is legislative, executive or judicial for purposes of extending immunity, the Court looks to the function performed by the defendant and not his title. Forrester, 484 U.S. at 227, 108 S.Ct. 538 (“[Ijmmunity is justified and defined by the functions it protects and serves not by the person to whom it attaches.”). Additionally, “whether an act is legislative turns on the nature of the act itself, rather than on the motive or intent of the official performing" }, { "docid": "19777817", "title": "", "text": "law immunity is “coterminous” with the federal constitutional legislative immunity, see Larsen v. Senate of the Commonwealth of Pa., 152 F.3d 240, 249 (3d Cir.1998), though the Supreme Court has expressed particular reluctance about extending a common law immunity. See Forrester v. White, 484 U.S. 219, 220, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (describing the Court’s “absolute official immunity” jurisprudence as “quite sparing”). The Pennsylvania Constitution contains a Speech and Debate Clause that tracks the federal clause, but it cannot shield a legislator from a violation of federal law. See Pa. Const. art. II, sec. 15. A. The Functional Test is Appropriate for Legislative Immunity The Caucus contends that the District Court erred in applying a “functional approach,” in which immunity hangs on whether an action serves “the due functioning of the legislative process.” United States v. Brewster, 408 U.S. 501, 516, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). The Supreme Court applied this “functional” approach to a personnel decision in Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). The Caucus, however, argues for an “alter ego” test for the application of legislative immunity. Under this approach, the Court should determine if the person fired, demoted, or otherwise affected by the legislator’s decision was so closely linked to the legislative process that any actions taken towards them were, in effect, legislative. The Caucus contends that the District Court’s application of the Forrester “functional” test was error for several reasons. The Caucus contends that (1) Forrester concerned a personnel decision made by a judge and should not therefore be applied to legislative immunity, and that (2) a circuit split exists on the question of which test is appropriate. We reject the first contention. The second is simply wrong. 1. Forrester has been applied to legislative immunity by every Court of Appeals to consider the issue The Caucus contends that the “functional” test laid out by the Supreme Court in Forrester should be limited to judicial immunity, as Forrester concerned a state judge’s claim of immunity after firing a probation officer. We reject this sharp" }, { "docid": "23315464", "title": "", "text": "732, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980)). Although not based on the doctrine of separation of powers, as is the constitutional immunity accorded Members of Congress, the state legislative immunity defense nonetheless implicates “principles of comity and federalism____” Agromayor, 738 F.2d at 58-59 (citing United States v. Gillock, 445 U.S. 360, 370-73, 100 S.Ct. 1185, 1192-94, 63 L.Ed.2d 454 (1980)). See also National Ass’n of Social Workers v. Harwood, 69 F.3d 622, 628 (1st Cir.1995). The immunity defense in this case protects only conduct within the “sphere of legitimate legislative activity.” Colon Berrios, 716 F.2d at 89 (citing Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028-29, 36 L.Ed.2d 912 (1973); Tenney, 341 U.S. at 376-77, 71 S.Ct. at 788-89). Absolute legislative immunity “is justified and defined by the junctions it protects and serves, not by the person to whom it attaches.” Negron-Gaztambide, 35 F.3d at 27 (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988)). “[I]t is the nature of the particular act rather than the title of the office which governs whether immunity attaches.” Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 21 (1st Cir.1992); see also Agromayor, 738 F.2d at 59. “Acts ... that are administrative in nature do not ‘give rise to absolute immunity from liability in damages under § 1983.’” Negron-Gaztambide, 35 F.3d at 28 (quoting Forrester, 484 U.S. at 229, 108 S.Ct. at 545); see also Agromayor, 738 F.2d at 59-60; Cutting v. Muzzey, 724 F.2d 259, 261-62 (1st Cir.1984). The scope of state legislative immunity from suit under section 1983 is “essentially coterminous” with the absolute immunity accorded members of Congress under the Speech or Debate Clause of the United States Constitution (or “the Clause”). Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at 732-33,100 S.Ct. at 1974-75). For the.Clause to apply, the activity must be “ ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation, or with respect" }, { "docid": "3609600", "title": "", "text": "instruction to the jury that he was entitled to recover damages on the theory that Dr. Hamolsky deprived him of his property interest in his medical license by imposing additional restrictions without due process. In Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), the Supreme Court reviewed the necessary elements of a procedural due process claim: A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law_ The constitutional violation ac- tionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law. Id. at 125-26, 110 S.Ct. at 983 (citations omitted and emphasis in original). Although recognizing that due process is “a flexible concept that varies with the particular situation,” id. at 127, 110 S.Ct. at 984, the Court “usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Id. (citations omitted). When a deprivation of a property interest is occasioned by random and unauthorized conduct by state officials, however, the Court has repeatedly emphasized that the due process inquiry is limited to the issue of the adequacy of postdeprivation remedies provided by the state. See id. at 128-30, 110 S.Ct. at 984-85 (discussing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82" }, { "docid": "5271030", "title": "", "text": "“it is [the Supreme Court’s] prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). As Carter has never been overruled, it should serve to bar the plaintiffs’’ cause of action in this case. Because we hold that an alleged Contracts Clause violation cannot give rise to a § 1983 claim, we need not address the defendants’ claimed immunity defenses on this point. IV The plaintiffs-appellees next bring a procedural-due-process claim, alleging that they were denied their right to a pre- or post-deprivation hearing. Unlike a Contracts Clause claim, a due-process claim is cognizable under § 1983. See, e.g., Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In a procedural-due-process claim, “the deprivation of property by state action is not itself unconstitutional; ‘what is unconstitutional is the deprivation of such an interest without due process of law.’ ” Christophel v. Kukulinsky, 61 F.3d 479, 485 (6th Cir. 1995) (quoting Zinermon, 494 U.S. at 125, 110 S.Ct. 975). In order to determine whether a due-process violation has occurred, we must first ask whether the plaintiffs-appellees were deprived of a constitutionally protected property right; if they were, we must then ask if the process provided was constitutionally adequate. Ibid. In procedural-due-process cases, however, there is also a preliminary inquiry: Does the state action involve the kind of individualized determination that triggers due-process protections in the first place? The Supreme Court has made clear that “[t]he Constitution does not require all public acts to be done in town meeting or an assembly of the whole.... [Individuals’] rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Inv. Co. v. State Bd. of Equalization," } ]

[ { "docid": "12039193", "title": "", "text": "officer to whom it is directed shall make the search \"forthwith.” . We have examined the withheld material and agree with the rulings of the district court. FREEDMAN, Circuit Judge (dissenting). For me this bizarre case presents the problem whether in a federal prosecution evidence may be used which was obtained by state officers in violation of a state statute which requires a court order to authorize access to a safe deposit box on appropriate notice to the owner, if he can be found. The state officers did obtain a search warrant from a magistrate and I agree with the majority that the affidavit for it was based on probable cause. However, the government concedes that the police did not comply with the procedure prescribed by the Pennsylvania Act of September 20, 1961, quoted in the majority opinion, for the search and seizure of the contents of the safe deposit box. Although the statute is poorly drawn and on its face might leave some doubt whether it was intended to be mandatory or directory, the legislative history makes it clear that it was designed as a mandatory prohibition against the search by police of a safe deposit box and the seizure of its contents except under authority of a judicial order on notice to the owner, if he could be found and if not, then on an order entered notwithstanding the want of notice. This is a federal trial, subject to our supervisory power over the administration of criminal justice and in my view a federal court should not permit the receipt in evidence of the fruits of a search of a safe deposit box effected by Philadelphia police officers in violation of the Pennsylvania statute. The decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) could readily form the basis of elaborate discussion. I think it is enough simply to record my view that they are not decisive of the present question but leave it open for" } ]

[ { "docid": "23625909", "title": "", "text": "undermines the validity of the warrant issued in this case. Smith also contends that the warrant violated New York law in a number of other respects. These arguments are unavailing, however, because the touchstone of a federal court’s review of a state search warrant secured by local police officials and employed in a federal prosecution is the Fourth Amendment and its requirements, and no more. In United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987), this court explicitly held that “federal law should apply to ... federal criminal proseeution[s], even though the underlying investigation leading to prosecution was conducted solely by state officials.” We ruled that because the search at issue satisfied the requirements of federal law, there was no need to determine whether the search violated the Vermont constitution. Id.; see also Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964) (“The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.”); Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960) (“The test is one of federal law, neither enlarged by what one state may have countenanced, nor diminished by what another may have colorably suppressed.”). Magistrate Judge Foschio cited as additional grounds for suppression (1) Evans’ failure to inform Judge Violante that the Cl failed on two occasions to successfully purchase cocaine, and (2) the “staleness” resulting from the lapse of seven weeks between the two cocaine purchases. We disagree. An otherwise sufficient application for a search warrant need not relate unproductive or unsuccessful efforts in the course of the investigation. See United States v. Watts, 848 F.2d 134, 137 (9th Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988); United States v. Sugar, 606 F.Supp. 1134, 1150-51 (S.D.N.Y.1985). As to “staleness,” as we stated in Rivera: “In investigations of ongoing narcotics operations, we have held that, intervals of weeks" }, { "docid": "12165781", "title": "", "text": "608, 87 L.Ed. 819. Rocha’s argument rests on the assumption that Sergeant Shaver’s act of handing to federal officers the evidence which Shaver found in Rocha’s safe violated Calif. Penal Code, §§ 1528 and 1536 (1957). Without expressing any view as to the merits of this argument had there been a violation of the above statutes, it is clear that in this instance there was no such violation. As we have held, there was, in effect, a dual state and federal arrest of Rocha prior to the seizure of the heroin. Moreover, even the state arresting officer was not confined to proceeding under the search warrant alone, as the state magistrate implicitly ruled when he held the state search warrant invalid. Affirmed. . On direct examination Sergeant Shaver stated that his department, the Federal Bureau of Narcotics, the San Jose Police Department and the Santa Clara Police Department were all involved in the investigation. Under questioning by the trial court, he stated that at the time the surveillance of Ram was undertaken this was going to be a federal case. . Section 7607 (2), however, goes no further than the Fourth Amendment in permitting arrests without a warrant based on “probable cause.” Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327; Ng Pui Yu v. United States, 9 Cir., 352 F.2d 626, 630; Rodgers v. United States, 9 Cir., 267 F.2d 79, 84. . Our conclusion would be the same even if we were mistaken in holding that Rocha was arrested by federal agents, rather than state officers, prior to the search. Section 836, Calif.Penal Code (1957) permits arrest without a warrant by state officers where there is reasonable cause to believe the arrested person has committed a felony. Since this is a federal prosecution, the test in determining probable cause is one of federal law. Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, 4 L.Ed. 2d 1669. . Section 1528 provides: “If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable" }, { "docid": "2960574", "title": "", "text": "presence of the officers; (b) the officers did . not possess arrest warrants; (e) under the law of Oklahoma the actions of the police officers in bringing the suspect vehicles to stops and thus under their control constituted an illegal arrest; and (d) under these circumstances Oklahoma law forbids the admission in evidence of incriminating objects seized incident to an unlawful arrest. Under the facts of these cases the state police officers would have been derelict in their duty to the public if they had not done exactly what they did. Miller argues that United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) control here. These cases stand for the rules that: (a) in the absence of an applicable Federal statute the law of the state where an arrest without warrant takes place determines its validity; and (b) search and seizure cannot be justified on any cause less than that probable cause required of the magistrate who issues arrest or search warrants. As noted in Alberty, supra, we believe that certain decisions, culminating with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), have vitiated these holdings. We shall review these decisions. The Di Re rule was rejected, by implication, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) . In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers (in a federal prosecution), a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.\" 364 U.S. at 223-224, 80 S.Ct. at 1447. (Emphasis ours). Since Mapp v. Ohio," }, { "docid": "9970535", "title": "", "text": "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Martin does not deny that all of these requirements have been satisfied. Indiana is free to add additional restrictions, but state officials’ failure to comply with state law does not lead to the exclusion of evidence in federal court. “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry .... The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have eolorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Elkins restricts the exclusionary rule to violations of the fourth amendment. This requires a court to assume that the state has authorized its agents to act exactly as they did, and then, ask whether the Constitution countermands that decision. See Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th Cir.1994). Martin does not contend that the’ fourth amendment (or any other part of the Constitution) limits the time available to execute arrest warrants; indeed, Martin concedes that if this warrant is a “rearrest warrant” in Indiana practice, then his arrest and consent are valid. Probable cause\" for a warrant is not necessarily enough. After . all, the fourth amendment requires, searches and seizures to be “reasonable.” Passage of time could affect reasonableness, especially for search warrants that authorize the police to hunt for items that áre portable' (or consuma-1 ble). An arrest might be thought unrea-' sonable after the statute of limitations for the offense has lapsed. But see Pickens v. Hollowell, 59 F.3d 1203, 1206-08 (11th Cir.1995) (arrest proper even after period of limitations has expired). Delay in executing an arrest warrant also increases the likelihood that the suspect has turned himself in or been arrested on another charge during the interim. A. misdemeanor charge1 might be cleared, and1 the penalty exacted, before the warrant had been executed, and such an arrest could" }, { "docid": "23232578", "title": "", "text": "conditioned upon a finding that the warrant satisfied federal constitutional requirements and certain provisions of Fed.R.Crim.P. 41 “designed to protect the integrity of the federal courts or to govern the conduct of federal officers.” United States v. Sellers, 483 F.2d 37, 43 (5th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). On the other hand, if the search is held to have been a “state” undertaking with minimal federal involvement, the warrant, assuming proper issuance under state law, need only conform to federal constitutional requirements. See, e. g., United States v. Johnson, 451 F.2d 1321, 1322 (4th Cir. 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1298, 31 L.Ed.2d 480 (1972); United States v. Coronna, 420 F.2d 1091, 1092 n.2 (5th Cir. 1970); United States v. Cotham, 363 F.Supp. 851, 855 (W.D.Tex.1973) United States v. Grosso, 225 F.Supp. 161 (W.D.Pa. 1964). An argument can be made that the search was “federal” in character, but we are more inclined to view the search as a “state” undertaking in which federal agents participated solely to supply additional manpower for the execution of the warrant. A number of facts support this position: (1) the warrant was issued under state law and directed to state officers; (2) the warrant was predicated on probable violation of state narcotics laws; (3) there was no evidence of bad faith on the part of either the state or federal officers; (4) federal agents did not assist in the obtaining of the warrant; (5) there was no evidence that federal agents instigated or supervised the search; (6) defendant was initially arrested by local police officers; (7) the majority of the evidence was found by local officers; and (8) the products of the search, placed in the custody of local police, formed the basis of a state prosecution. . See United States v. Scolnick, 392 F.2d 320, 325-26 (3d Cir.), cert. denied, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968). See also Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Armocida, 515 F.2d" }, { "docid": "23232580", "title": "", "text": "49 (3d Cir., 1975). . It is a recognized principle that a federal court is not bound by a state court’s interpretation of federal laws or of a state statute under misapprehension of federal law. Furthermore, a state court may not impose greater restrictions, as a matter of federal constitutional law, on police activity with respect to search and seizures than the United States Supreme Court holds to be necessary, although it may interpret a feature of state constitutional law more restrictively than the Supreme Court has interpreted an equivalent provision of the Federal Constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). . See, e. g., United States v. Higgins, 428 F.2d 232 (7th Cir. 1970). . See, e. g., Moore v. United States, 149 U.S. App.D.C. 150, 461 F.2d 1236, 1238 (1972); United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955); United States v. Barkouskas, 38 F.2d 837, 838 (M.D.Pa.1930). . Whether the warrant is invalid under state standards for lack of specificity we need not consider. Apparently though, the state court judge, in granting Bedford’s motion to suppress evidence, was at least partially relying on an adequate and independent non-federal ground. See Commonwealth v. Copertino, 209 Pa.Super. 63, 224 A.2d 228 (1966). . Although the scope of the warrant did not extend to a search of the trash area, if the police were lawfully inside the apartment building, they could search and seize items specified in the warrant and found in common areas of the building. Cf. United States v. Blake, 484 F.2d 50 (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974). . United States ex rel. Beal v. Skaff, 418 F.2d 430, 433 (7th Cir. 1969). . United States v. Nepstead, 424 F.2d 269, 271 (9th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 50, 27 L.Ed.2d 86 (1970). . See, e. g., United States v. Wilson, 491 F.2d 724 (6th Cir. 1974), and cases cited therein. These cases involved “federal” searches and application of Rule 41(c) of the Federal Rules of" }, { "docid": "9970534", "title": "", "text": "115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus Martin’s motion to suppress the evidence on the ground that a wrongful arrest entry had tainted the consents was denied. 2004 WL 434196, 2004 U.S. Dist. LEXIS 3655 (S.D.Ind. Feb. 27, 2004). In this court the parties debate how, if at all, the good-faith exception applies to a violation of Ind.Code § 35-33-2-4. But the answer does not matter. There is no need to explore the scope of exceptions to the exclusionary rule, when it does not apply in the first place. Let us assume that the police did not have a “rearrest warrant.” (This is not at all clear. Martin had been arrested and directed to appear at trial; a bench warrant to pick him up again following his skip sensibly may be described as a “rearrest warrant.”) Any shortcoming is one of state law only. The fourth amendment’s rules for warrants do not include time limits. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Martin does not deny that all of these requirements have been satisfied. Indiana is free to add additional restrictions, but state officials’ failure to comply with state law does not lead to the exclusion of evidence in federal court. “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry .... The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have eolorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Elkins restricts the exclusionary rule to violations of the fourth amendment. This requires a court to assume that the state has authorized its agents to act exactly as they did, and then, ask whether the Constitution countermands that decision. See Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th" }, { "docid": "19457254", "title": "", "text": "not fall within the ambit of the \"special needs\" exception to the warrant requirement. ... Lambus II , 251 F.Supp.3d at 495 (emphases added). The court further ruled that despite the State parole authorities' assumption that they did not need court authorization for GPS monitoring of Lambus because he was a parolee, [s]earches initiated by state officers are subject to federal rules of criminal procedure when evidence from those searches is to be used in federal court. United States v. Brown , 52 F.3d 415, 420 (2d Cir. 1995) (\"[F]ederal law is applicable in a federal prosecution even when state police officers were involved.\"); see also Preston v.United States , 376 U.S. 364, 366, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (\"The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judge[d] as if the search and seizure had been made by federal officers.\"). Lambus II , 251 F.Supp.3d at 493. \" '[E]vidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial.' \" Id . (quoting Elkins v. United States , 364 U.S. 206, 223, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ). Moreover, [a] search [by state officers] may be deemed a \"federal search\" subject to the strictures of [Fed. R. Crim. P.] 41 even where the search is executed by state law enforcement personnel for the purpose of detecting violations of state law if \"federal officers 'had a hand in it .' \" [United States v. ] Turner , 558 F.2d [46,] 49 [ (2d Cir. 1977) ] (quoting Lustig v. United States , 338 U.S. 74, 78, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) ) (emphasis added) .... For a federal agent to have \"had a hand\" in a search, [i]t is immaterial whether a federal agent originated the idea or joined in it while the search was in" }, { "docid": "17676005", "title": "", "text": "BAILEY ALDRICH, Senior Circuit Judge. This is an appeal by claimant-owner of a multi-dwelling building in Woonsocket, Rhode Island, from a decree of forfeiture pursuant to 21 U.S.C. § 881(a)(7). We affirm. At 9:30 p.m. on July 1, 1986, Rhode Island police officers executed a search warrant, and, during the search of the building, seized various narcotics paraphernalia and a quantity of cocaine. This proceeding followed. Claimant moved to suppress the seized material, alleging that the police unjustifiably failed to comply with the knock and announce rule governing house searches, and that the warrant was executed at night without good cause. Claimant concedes that this latter argument fails if federal law controls, it still being “daytime” by the federal definition, Fed.R.Crim.P. 41(h), but contends that, because the warrant was executed by state police without any federal participation, state law should control. If the state police were doing what federal officers could not do, claimant would be correct. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The district court, however, determined that, under the teachings of our opinion in United States v. Aiudi, 835 F.2d 943 (1st Cir.1987), cert. denied, - U.S. -, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988), “state-seized evidence is admissible in federal courts if it was obtained in accordance with federal requirements even though it may have been obtained by state officers in violation of state law.” 696 F.Supp. 783, 787. In Aiudi, we held that a search conducted by state police pursuant to an invalid warrant did not necessitate the suppression of evidence in federal court because a federal agent on the scene had authority to do “legally ... exactly what ... the [state] police did unlawfully.” 835 F.2d at 946. Although, here, there was no federal involvement in the search of claimant’s apartment, the district court reasoned that Aiudi’s underlying principles still applied: First, where federal actors could have done lawfully what state actors may have done in violation of local law, there does not seem any reason to believe that the federal actors would encourage state actors to" }, { "docid": "23113097", "title": "", "text": "a “direct violation of the constitutional rights of the defendant.” Weeks, 232 U.S. at 398, 34 S.Ct. at 346. “Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). Therefore, in federal court, this rule only requires the court to exclude evidence seized in violation of the Federal Constitution. A state may impose a rule for searches and seizures that is more restrictive than the Fourth Amendment; that is, the state may exclude evidence in state trials that would not be excluded by application of the Fourth Amendment alone. However, the state rule does not have to be applied in federal court. United States v. Allen, 954 F.2d 1160, 1168 (6th Cir.1992). The fact that Tennessee law “may now require greater protection against searches and seizures than the fourteenth amendment is of no avail to a defendant in federal court, under prosecution for a federal crime.” United States v. Loggins, 777 F.2d 336, 338 (6th Cir.1985). Defendant relies on United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), and United States v. Bradley, 922 F.2d 1290 (6th Cir.1991), overruled on other grounds by United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir.1993) (en banc), for the proposition that state law determines the validity of the arrest for purposes of determining whether evidence seized incident to the arrest is admissible in a federal criminal trial. However, the continuing validity of Di Re is doubtful, and both Di Re and Bradley are distinguishable from the present case. In Di Re, a federal agent and a state police officer made warrantless arrests of three men after receiving a tip from one of the men that he was going to purchase counterfeit gasoline ration coupons. During a search conducted at the police station, the police officer found 100 counterfeit gasoline ration coupons on Di Re’s person. The government argued that the search of Di" }, { "docid": "4438806", "title": "", "text": "As authority for his argument that a joint state-federal search was illegal, Johnson refers to Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). In Byars a local police officer and a federal revenue agent jointly searched defendant’s premises, and in the course of the search found a number of counterfeit internal revenue stamps. Defendant was convicted in federal court of unlawful possession of the stamps. The Supreme Court concluded that the underlying state search warrant did not meet Fourth Amendment standards. The court then went on to find that the participation of the federal agent made the search a joint operation of local and federal officers. Having found substantial federal participation in the search, the Court ruled that the counterfeit internal revenue stamps had to be suppressed because the search during which they were found was conducted in violation of the Fourth Amendment. At the time Byars was decided, the Fourth Amendment applied only to federal searches, and even in cases where a state’s seizure of evidence was clearly improper, the Fourth Amendment did not prevent its subsequent use in a federal prosecution (the “silver platter” doctrine). Byars did not hold that a joint state-federal search rendered evidence inadmissible. Rather, Byars simply limited the silver platter doctrine by holding that, when federal agents participated in the illegal search, the evidence had to be excluded at the federal prosecution. The discussion in Byars of the type of federal involvement necessary to render a search a joint state-federal undertaking would have been unnecessary but for the silver platter doctrine. This discussion is now of little precedential value since the silver platter doctrine has long been discredited. See Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). . The police were familiar with Johnson’s prior conviction because they had been investigating him for several weeks before the search. Johnson does not contend that the searching officers were unaware of his prior record. In his brief Johnson quotes a passage from testimony given by one of the searching officers in a suppression hearing" }, { "docid": "5275070", "title": "", "text": "would provide reasonable or probable cause to waive the knock and announce requirement of [section] 3109.” Moore, Memorandum at 7. The government appeals this decision, arguing that the evidence seized at Moore’s home is admissible under the good faith exception to the exclusionary rule, and that the state officers’ good faith should be determined under Nebraska law rather than federal law. II. The government’s challenge to the district court’s order requires resolution of two issues: whether the district court was correct in applying federal law rather than state law to determine admissibility of the evidence in this case, and whether suppressing the evidence was correct under the applicable law. I conclude that federal law governs admissibility of evidence in this case, and that the district court correctly suppressed the evidence. A. Applicable Law The Supreme Court established, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), that “[t]he question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.” Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (citing Elkins, 364 U.S. at 206, 80 S.Ct. at 1437). In determining whether state officers effected an unreasonable seizure, “a federal court must make an independent inquiry.... The test is one of federal law.” Elkins, 364 U.S. at 223-24, 80 S.Ct. at 1447-48. See also United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990) (“Because the execution of the warrant was carried out by state authorities in this case, we note that a state search must be reasonable under the fourth amendment in order for evidence to be admissible in a federal prosecution.”), cert. denied, — U.S. -, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991). The purpose of imposing a federal standard of admissibility in federal proceedings is to prevent admission of evidence in a federal criminal trial that was seized by state agents in violation of the defendant’s federal" }, { "docid": "23232579", "title": "", "text": "agents participated solely to supply additional manpower for the execution of the warrant. A number of facts support this position: (1) the warrant was issued under state law and directed to state officers; (2) the warrant was predicated on probable violation of state narcotics laws; (3) there was no evidence of bad faith on the part of either the state or federal officers; (4) federal agents did not assist in the obtaining of the warrant; (5) there was no evidence that federal agents instigated or supervised the search; (6) defendant was initially arrested by local police officers; (7) the majority of the evidence was found by local officers; and (8) the products of the search, placed in the custody of local police, formed the basis of a state prosecution. . See United States v. Scolnick, 392 F.2d 320, 325-26 (3d Cir.), cert. denied, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968). See also Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Armocida, 515 F.2d 49 (3d Cir., 1975). . It is a recognized principle that a federal court is not bound by a state court’s interpretation of federal laws or of a state statute under misapprehension of federal law. Furthermore, a state court may not impose greater restrictions, as a matter of federal constitutional law, on police activity with respect to search and seizures than the United States Supreme Court holds to be necessary, although it may interpret a feature of state constitutional law more restrictively than the Supreme Court has interpreted an equivalent provision of the Federal Constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). . See, e. g., United States v. Higgins, 428 F.2d 232 (7th Cir. 1970). . See, e. g., Moore v. United States, 149 U.S. App.D.C. 150, 461 F.2d 1236, 1238 (1972); United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955); United States v. Barkouskas, 38 F.2d 837, 838 (M.D.Pa.1930). . Whether the warrant is invalid under state standards for lack of specificity we need not" }, { "docid": "23696611", "title": "", "text": "F.2d 46, 49 (2d Cir.1977), we held that it is appropriate to apply federal law in a federal case, even where the evidence was seized in violation of state law. However, in Turner, a United States Customs agent was involved in procuring the evidence that would have been suppressed under state law. See also United States v. Magda, 547 F.2d 756, 757 n. 2 (2d Cir.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 230, 54 L.Ed.2d 157 (1977). In this case we must determine the narrower issue of whether federal law still applies when there has been no participation by a federal agent in the challenged investigation or acquisition of evidence. The government urges that Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), is dispositive of this issue. We disagree. In Elkins the Supreme Court held that evidence seized by state officials in violation of the United States Constitution is subject to the federal exclusionary rule. Elkins involved a federal prosecution in which a challenge was raised as to the admissibility of evidence obtained by state officers during a search that would have violated the defendant's fourth amendment protection against unreasonable searches and seizures if conducted by federal officers. Elkins did not address the issue of whether state constitutional considerations could restrict the admissibility of evidence in a federal prosecution. However, the Court noted that in the determination of whether there has been an unreasonable search or seizure, “[t]he test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Id. at 224, 80 S.Ct. at 1447 (emphasis added). We are in agreement with the district court that Elkins generally stands for the proposition that “federal law governs federal prosecutions in federal court.” This view is also supported by Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). In Olmstead, the Court addressed the issue of whether evidence obtained by federal officers in violation of a state statute must be suppressed in a federal prosecution." }, { "docid": "17859098", "title": "", "text": "not merely admonitory. They have the force of law.” Id. “We cannot agree [with the decisions of other Circuits] that the Rule is ‘only a procedural prescription as to the issuance of warrants by the federal courts.’ ” Id. n. 3 (quoting Gillespie v. United States, 368 F.2d 1, 4 (8th Cir.1966)). However, Navarro expressly eschewed any constitutional basis for its decision, stating, “We do not deal with the validity of the search under the constitutional requirements of the fourth amendment.” 400 F.2d at 316 n. 1. In requiring suppression, Navarro relied primarily on Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956), which enjoined federal agents from testifying concerning and producing in a state trial marihuana which they had seized under a constitutionally defective warrant for which “no probable cause existed.” 76 S.Ct. at 293. The warrant had been issued by a United States commissioner to federal narcotics agents, and the seized marihuana had been suppressed in the federal prosecution, after which the state prosecution was instituted on a state complaint sworn out by the federal officers. It was apparently conceded that “the Fourth Amendment, as judicially construed, would bar the use of this evidence in a federal prosecution.” Id. (see also Justice Harlan’s dissenting opinion characterizing the Court’s holding as applying to evidence “obtained in contravention of the Fourth Amendment,” id. at 294). Navarro also expressed the view that “continuance of the practice herein might well lead to a limited revival of the ‘silver platter’ practice” condemned in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Navarro, 400 F.2d at 319-20. Elkins held that evidence obtained by state officers in violation of the Fourth Amendment, as made applicable to the states by the Fourteenth, was inadmissible in a federal prosecution notwithstanding that federal officers had no involvement in the search and merely received the evidence on a “silver platter.” 80 S.Ct. at 1439, 1447. The opinion in Elkins outlined the development of the Fourth Amendment exclusionary rule, beginning with the holding in Weeks v. United States, 232" }, { "docid": "23113096", "title": "", "text": "Defendant argues that the evidence obtained from the search of his person and rental car on August 23, 1991, should have been suppressed because under Tennessee law, which imposes a stricter standard for warrantless arrests, searches, and seizures than corresponding federal law, the police officers did not have probable cause for the arrest or the search. Thus, we must decide whether a federal court must look to state law to assess the validity of an arrest, search, and seizure for purposes of determining the admissibility of the seized evidence in a federal criminal trial. We review this question of law de novo. United States v. Allen, 954 F.2d 1160, 1166 (6th Cir.1992). Evidence obtained by a search and seizure that violates the Fourth Amendment is inadmissible in a criminal trial. E.g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This exclusionary rule emanates from the Fourth Amendment, not state law, and is a judicial response to a “direct violation of the constitutional rights of the defendant.” Weeks, 232 U.S. at 398, 34 S.Ct. at 346. “Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). Therefore, in federal court, this rule only requires the court to exclude evidence seized in violation of the Federal Constitution. A state may impose a rule for searches and seizures that is more restrictive than the Fourth Amendment; that is, the state may exclude evidence in state trials that would not be excluded by application of the Fourth Amendment alone. However, the state rule does not have to be applied in federal court. United States v. Allen, 954 F.2d 1160, 1168 (6th Cir.1992). The fact that Tennessee law “may now require greater protection against searches and seizures than the fourteenth amendment is of no avail to a defendant in federal court, under prosecution" }, { "docid": "5275046", "title": "", "text": "the Nebraska judge had probable cause to issue the warrant to search Moore’s residence. The issue is whether the no-knock entry was lawful. A Nebraska statute expressly authorizes state officers to obtain a no-knock search warrant, as was done here. See Neb.Rev.Stat. § 29-411 (1983), quoted infra p. 848. Section 3109, which governs the permissible scope of no-knock searches by federal law enforcement officers, does not authorize no-knock search warrants. The government does not contest the district court’s conclusion that the no-knock entry in this case would have violated § 3109 if conducted by federal officers. Thus, the initial question is whether this federal statute was properly applied to exclude evidence seized by state officers acting under a search warrant issued pursuant to state law. III. The district court concluded that § 3109 governs the conduct of these Nebraska officials because this is a federal prosecution. We disagree. It is true that, if state officers seize evidence in violation of the Fourth Amendment and turn that evidence over to federal officers (a practice known, when lawful, as the “silver platter”), the evidence must be excluded in a resulting federal prosecution. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Supreme Court reaffirmed this principle, in the rather sweeping language quoted by the district court, in Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964): The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. However, the Supreme Court has only considered this question in the context of evidence seized by state officials in violation of the Fourth Amendment. Likewise, our prior cases applying the Elkins/Preston doctrine to exclude evidence seized by state officers from federal prosecutions have involved Fourth Amendment violations. See United States v. Keene, 915 F.2d 1164 (8th Cir.1990); United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108" }, { "docid": "21920553", "title": "", "text": "informant was justified in concluding that the presence of illegal firearms on appellant’s premises was a probability. The validity of the search warrant on its face is also challenged. Relying on Louisiana Supreme Court decisions in State v. Chargois, 245 La. 647, 160 So.2d 231 (1964), and State v. Lee, 247 La. 553, 172 So.2d 678 (1965), appellant contends that the search warrant was void since it failed to describe the premises to be searched with sufficient particularity to satisfy state and federal constitutional requirements. In effect, appellant argues that we should, in this federal prosecution, adhere to rulings of the Supreme Court of Louisiana to test the validity of the search warrant used to search his premises. Appellant points to the Supreme Court’s decision in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), as being persuasive on this point. In Elkins, the Supreme Court held “that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial”. After so concluding, the Supreme Court said: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” [Emphasis added]. 364 U.S. at 223-224, 80 S.Ct. at 1447. See, also, United States v. Alberty, 10 Cir., 1971, 448 F.2d 706, where the Tenth Circuit, relying on Elkins, in effect held that in determining the admissibility of evidence in federal prosecution for unlawful possession of firearms, which evidence was the product of search and seizure of defendant’s automobile following his illegal arrest by city police officers, federal law, rather than state law, applied. Moreover, Rule 26," }, { "docid": "21488179", "title": "", "text": "same five officers maintained a surveillance of the vehicle until they were relieved at 7:00 A.M. by three other police officers and two United States Secret Service Agents. At about 1:30 P.M. the defendants approached the vehicle and were apprehended while placing clothing into the back end. After the defendants were arrested a search of the vehicle was conducted, and numerous counterfeit coins, more than 100 pieces of plaster molds of various denominations, and various pieces of equipment usable as counterfeiting paraphernalia were seized. No search warrant was obtained for the search of the vehicle by either the Minneapolis police officers or the federal agents. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects* against unreasonable searches and seizures, * * *.” It is the defendants’ contention that this right was violated when the police officers, without a warrant and allegedly without probable cause* searched and seized from their automobile the evidence in question. It is established that whether evidence obtained by state officers and sought to be used against a defendant in a federal prosecution was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). If these actions constitute an illegal search and seizure under the Fourth Amendment then the motion to suppress must be sustained. The Fourth Amendment is in the nature of a guarantee of privacy and may be invoked by any citizen, whether guilty or innocent. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931). However, it is clear that the Fourth Amendment does not forbid all searches and seizures but only such as are unreasonable, and “[t]he propriety of the seizure of property without a search warrant is dependent upon the' facts and circumstances existing at and prior to the time of seizure and known to the seizing officers.” Lawson v. United States, 254" }, { "docid": "20910018", "title": "", "text": "at 49 (quoting Lustig v. United States, 338 U.S. 74, 78, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949)) (emphasis added); see also In re 381 Search Warrants Directed to Facebook, Inc., 78 N.E.3d 141, 2017 WL 1216079 (N.Y. Apr. 4, 2017) (Wilson, J., dissenting) (“State rules of procedure applicable to garden-variety warrants cannot be used as a device to contravene or frustrate federal law.”). For a federal agent to have “had a hand” in a search, [i]t is immaterial ichether a federal agent originated the idea or joined in it ivhile the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. Lustig, 338 U.S. at 79, 69 S.Ct. 1372 (emphasis added). Prior to the Supreme Court’s decision in Elkins v. United States, evidence obtained by state authorities in violation of the Fourth Amendment could be used in a federal prosecution so long as federal officers did not participate in the unreasonable search and seizure. 364 U.S. 206, 208-14, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). In Elkins, the Court reversed its so-called “silver platter doctrine.” It held federal officials to federal constitutional standards when using evidence obtained by a state. [E]vidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial. Id. at 223. Prohibition on the use of evidence unconstitutionally gathered by a sovereign other than the prosecuting one extends to situations “when the search was by federal officers and the. evidence is offered in a state prosecution and when the search was by officers in one state and the evidence is offered in a-prosecution in another - state.” Wayne R. LaFave, 1 Search & Seizure § 1.6(c) (6th ed. 2012) (citing cases).: It does not follow that evidence lawfully gathered in one jurisdiction may always be used by another prosecuting authority. In United States v. Birrell, 470 F.2d" } ]

[ { "docid": "8480816", "title": "", "text": "to maintain her claim turns on the meaning of the word “contract” as used in § 1981. This is an issue of first impression in this Circuit. The district courts in this Circuit that have addressed the issue disagree on the result. Compare Nofles v. State Farm Mut. Auto. Ins. Co., 101 F.Supp.2d 805, 820 (E.D.Mo.2000) (holding at-will employment not contractual under Missouri law and, therefore, plaintiff cannot maintain § 1981 claim), and Jones v. Becker Group of O’Fallon Div., 38 F.Supp.2d 793, 796-97 (E.D.Mo.1999) (same), with Foster v. BJC Health Sys., 121 F.Supp.2d 1280, 1288-89 (E.D.Mo.2000) (holding that at-will employee may state claim under § 1981), Filbern v. Habitat for Humanity, 57 F.Supp.2d 833, 835-36 (W.D.Mo.1999) (same), and LaRocca v. Precision Motorcars, Inc., 45 F.Supp.2d 762, 774-77 (D.Neb.1999) (same). Each federal court of appeals that has explicitly decided the issue has held, however, that an at-will employee may maintain a claim under § 1981 for racially discriminatory employment practices. See Lauture v. Int’l Bus. Machs. Corp., 216 F.3d 258, 261-62 (2d Cir.2000) (holding that at-will employee may state § 1981 claim); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.1999) (same), cert. denied, 529 U.S. 1110, 120 S.Ct. 1964, 146 L.Ed.2d 796 (2000); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999) (same); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1051-52 (5th Cir.1998) (same). But see Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1034-35 (7th Cir.1998) (expressing doubt, in dicta, that at-will employees may state § 1981 claims). The parties agree that the federal courts must look to the state-law definition of “contract” in adjudicating § 1981 claims. Under Missouri law, we find that Skinner’s at-will employment agreement with Maritz had all the essential elements of a valid contract: offer, acceptance, and bargained-for consideration. See Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo.1988). Maritz offered, either implicitly or explicitly, to pay Skinner for performance of services. Skinner accepted that offer by performance; she worked for Maritz for nineteen years and Maritz presumably paid her in regular intervals for the" } ]

[ { "docid": "22600469", "title": "", "text": "Supervisor since June 1999. During the period July 29, 1998 to present I have been denied training and promotional opportunities. Since January 12, 1999,1 have complained of internal discrimination to the Respondent and nothing has been done. In June 1999, I was promised a manager position by September 1999. I was not given the position, instead I was demoted to Head Cashier with a reduction in salary. II. I believe that I have been discriminated and retaliated against because of my national origin, non-Hispanic, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that I was not trained, I was denied a managerial position, and ultimately demoted after I complained of discrimination, while my Hispanic co-workers have been properly trained and promoted. (R.33 at 15.) . We leave for another day the question of whether under § 1981 Ajayi can state a claim for discriminatory or retaliatory discharge. See Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1035 (7th Cir.1998) (expressing doubts, in dicta, that at-will employees may sustain claims under § 1981 arising out of the termination of their employment). But see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999) (holding that an at-will employment relationship is sufficiently contractual in nature to support § 1981 claims); see also Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir.2001); Lauture v. IBM Corp., 216 F.3d 258 (2d Cir.2000); Perry v. Woodward, 199 F.3d 1126 (10th Cir.1999); Fadeyi v. Planned Parenthood Assoc. of Lubbock, Inc., 160 F.3d 1048 (5th Cir.1998)." }, { "docid": "22128253", "title": "", "text": "Courts of Appeal. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1020 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n, 160 F.3d 1048, 1052 (5th Cir.1998). The amendment of section 1981 to include a prohibition against racially discriminatory conduct in the termination of contracts has effectively altered the at-will employment relationship. Although the general rule that an employer can discharge an at-will employee for any reason or no reason is still valid, an employer can no longer terminate an at-will employment relationship for a racially discriminatory reason. See 42 U.S.C. § 1981(b); see also Hopkins, 30 F.3d at 105 (stating that the protections of section 1981 now encompass the termination of the employment relationship). The great weight of well-reasoned authority supports this court’s conclusion that the employment-at-will relationship encompasses sufficient contractual rights to support section 1981 claims for wrongful termination. See, e.g., Spriggs, 165 F.3d at 1018-20; Fadeyi, 160 F.3d at 1049-52; LaRocca v. Precision Motorcars, Inc., 45 F.Supp.2d 762, 774-77 (D.Neb. 1999); O’Neal v. Ferguson Constr. Co., 35 F.Supp.2d 832, 837-38 (D.N.M.1999); Williams v. United Dairy Farmers, 20 F.Supp.2d 1193, 1201-02 (S.D.Ohio 1998); Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1272 (M.D.Ala.1998); Harris v. New York Times, No. 90 CIV. 5235, 1993 WL 42773, at *3-*4 (S.D.N.Y. Feb. 11, 1993). The district court erred as a matter of law when it dismissed Perry’s claims arising under section 1981 because she was an at-will employee. 2. Evidence of Intentional Discrimination The district court also held that the dismissal of Perry’s section 1981 racial discrimination claim was mandated by Perry’s failure to produce any evidence of intentional discrimination. See Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir.1994) (“Only intentional discrimination may violate section 1981.”). It is well settled that a plaintiff can show intentional discrimination either by direct evidence of discrimination or by indirect- evidence, employing the burden-shifting framework first articulated in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d" }, { "docid": "22946855", "title": "", "text": "allow retaliation claims under section 1981. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 339 (5th Cir.2003); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998); Andrews, 140 F.3d at 1412-13; see also Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir.1996) (listing the elements for a prima facie case of retaliation under section 1981). For instance, in Andrews, the Eleventh Circuit noted that prior to Patterson, circuits interpreting section 1981’s “make and enforce contracts” provisions had held that it “encompassed an employee’s claims for an employer’s race-based retaliation during the employment contract.” 140 F.3d at 1410. It observed that while Patterson “drew into question many circuit court decisions recognizing post-hiring discrimination claims under section 1981,” the Civil Rights Act of 1991 reversed whatever limits Patterson placed on imposing liability for postformation conduct. Id. at 1410-12. As a result, the Eleventh Circuit concluded that retaliation claims remained viable under section 1981. Id. at 1412. B. Humphries’s Retaliation Claim Is Cognizable Under Section 1981 1. We Hold that Section 1981 Protects Against Retaliation This is the first opportunity we have had since the enactment of the Civil Rights Act of 1991 to re-visit the issue of whether section 1981 forbids all retaliatory discharge claims. Cracker Barrel contends that our decision in Hart has already foreclosed retaliation claims under section 1981. See Hart, 426 F.3d at 866. This is incorrect. Unfortunately, Hart has already been cited for this inaccurate proposition. See Williamson v. Denk & Roche Builders, Inc., No. 04 C 4051, 2006 WL 1987808, at *4 (N.D.Ill. July 11, 2006) (cit ing Hart for the proposition that “the Seventh Circuit has made clear that a retaliation claim is not viable under Section 1981”); Franklin v. U.S. Steel Corp., No. 2:04 CV 246, 2006 WL 905914, at *2 (N.D.Ind. Apr.7, 2006) (same); Welzel v. Bernstein, 436 F.Supp.2d 110, 117 (D.D.C.2006) (citing Hart for the proposition that this circuit, unlike other circuits, precludes retaliation claims under section 1981). Our analysis in Hart was limited to the narrow issue of whether an individual who was not the subject" }, { "docid": "22946853", "title": "", "text": "Cudahy’s or Judge Fairchild’s reading of Patterson was correct is now irrelevant because Patterson’s influence was short-lived. Unhappy with the result issued in Patterson, Congress legislatively superceded the Patterson decision by enacting the Civil Rights Act of 1991. See Rivers, 511 U.S. at 305-06, 305 n. 5, 114 S.Ct. 1510 (noting that the Civil Rights Act of 1991 was based on Congressional and Presidential disapproval of the Patterson decision); Walker v. Abbott Labs., 340 F.3d 471, 475 (7th Cir.2003) (noting that “Congress, however, quickly responded [to Patterson ] with the Civil Rights Act of 1991, which, inter alia, overruled Patterson”). The legislative history of the Civil Rights Act of 1991 makes clear that Congress was dissatisfied with the Supreme Court’s narrow reading of section 1981, which strongly curtailed claims that had been cognizable in the pre-Patterson period. See Rivers, 511 U.S. at 306 n. 6, 114 S.Ct. 1510 (citing S.Rep. No. 101-315, pp. 12-14 (1990)). Among other things, Congress added subsection (b) to section 1981, which made clear that section 1981 was to be read broadly to include all aspects of the contractual relationship between parties, including the postformation conduct, which Patterson had concluded was not actionable under section 1981: For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981(b). And the legislative history pertaining to this subsection confirms that Congress intended retaliation to be included under this provision. See Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 n. 12 (11th Cir.1998) (citing H.R.Rep. No. 40(1), 102d Cong., 1st Sess. 92 (1991), as reprinted in 1991 U.S.C.C.A.N. 549, 630, which states, in part, “[t]he list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” (emphasis added)). The Civil Rights Act of 1991 led several circuits to reverse course (again) and to" }, { "docid": "7539809", "title": "", "text": "cases from other circuits. After the district court’s ruling, three more circuits decided that at-will employees could bring claims under § 1981. See Skinner v. Maritz, 253 F.3d 337, 342 (8th Cir.2001); Lauture v. Int’l Bus. Machs., 216 F.3d 258, 260 (2d Cir.2000); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.1999). Abbott asserts that because Walker never sought to have the district court reconsider its earlier ruling in light of the contrary rulings by three additional circuits, we should hold that Walker has waived his right to challenge the district court’s dismissal of the § 1981 claim. Again, we find this argument wholly without merit. And again, Abbott cites absolutely no authority that creates an obligation to raise a motion to reconsider in order to preserve the argument for appeal. There is simply no rule or case law that requires litigants to move for reconsideration of an interlocutory ruling in order to avoid waiving a challenge to that ruling on appeal of a final decision. Moreover, an analysis of the district court’s ruling reveals that a motion to reconsider in light of new nonbinding authority likely would have been futile. The district court had already refused to follow two other circuits because it felt compelled to follow our dicta in Gonzalez. There is no reason to believe that the district court would have changed its decision when more nonbinding authority was brought to its attention. We find that Walker did not waive his § 1981 claim by failing to raise a motion to reconsider or by failing to bring a Title VII disparate-treatment claim. Therefore, Walker has properly preserved his challenge to the district court’s ruling for appeal, and we will now turn to the merits. B. At-Will Employees and § 1981 Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (2003). In Patterson v. McLean Credit Union, the Supreme Court took a narrow view of the phrase “make" }, { "docid": "9860871", "title": "", "text": "discharge under § 1981. See Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1964, 146 L.Ed.2d 796 (2000); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1051-52 (5th Cir.1998) (reh. and suggestion for reh. en banc denied, Dec. 7, 1998). Further, a growing number of district courts in this circuit have also adopted this view. See Hartzog v. Reebok Int'l Ltd., 77 F.Supp.2d 478, 479-80 (S.D.N.Y.1999); Dew v. Health Ins. Plan of Greater New York, 97 Civ. 7006(ILG), 1999 WL 684158, at *4 (E.D.N.Y. July 15, 1999), aff'd, 208 F.3d 202, 2000 WL 282488 (2d Cir.2000) (unpublished); Harris v. New York Times, 90 Civ. 5235(CSH), 1993 WL 42773, at *4 (S.D.N.Y. Feb. 11, 1993). We join the emerging consensus of the district courts in this circuit, and the other circuit courts of appeal that have squarely decided this issue, to hold that an at-will employee may sue under § 1981 for racially discriminatory termination. A. The scope of § 1981 Section 1981 was originally the first section of the Civil Rights Act of 1866. It provided as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Runyon v. McCrary, 427 U.S. 160, 164 n. 1, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (setting forth statute); see also id. at 168-70 & n. 8, 96 S.Ct. 2586 (describing derivation of statute). In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), although the Supreme Court recognized that § 1981 “ ‘prohibits racial discrimination in the making and enforcement of private contracts,’ ” id. at 171, 109" }, { "docid": "7539807", "title": "", "text": "v. Roberts, 295 F.3d 687, 697-98 (7th Cir.2002) (citing Gonzalez, 133 F.3d at 1035), these two avenues of remedy are not identical. For instance, Title VII provides that absent a continuing violation, a plaintiff has only 300 days from the date of the discriminatory act in which to file a claim, see 42 U.S.C. § 2000e-5(e)(l) (2003); whereas § 1981 provides a two-year statute of limitations. Unlike Title VII, § 1981 does not require the filing of an EEOC charge before bringing an action in a federal court. Section 1981 claims are not subject to the same damage caps as Title VII claims. See 42 U.S.C. § 1981a (2003). Finally, Title VII is not available to employees who work in relatively small businesses. See 42 U.S.C. § 2000e(b). To say that failure to pursue one of these avenues results in a waiver of the other, entirely separate avenue, is simply incorrect. For whatever reason, Walker pressed a disparate-treatment theory only under § 1981. He pursued this claim in the district court, and he properly preserved it for appeal. He was entitled to wait for a final judgment and then appeal the district court’s ruling on that claim to this court. He has done just that. The second procedural argument that Abbott makes is that Walker waived his challenge to the district court’s dismissal of his § 1981 claim because he failed to ask the district court to reconsider its ruling in light of new decisions from other circuits. The district court dismissed. the § 1981 claim based on dicta in Gonzalez in which this Court speculated that an at-will employment relationship may not be sufficiently contractual to sustain a claim under § 1981. 133 F.3d at 1035. In its ruling, the district court acknowledged that two other circuits had ruled that at-will employees could state claims under § 1981, see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1049-50 (5th Cir.1998), but the district court stated that it felt compelled to follow Gonzalez rather than the" }, { "docid": "15207514", "title": "", "text": "not point to a similarly situated employee in an unprotected class who was more favorably treated,” id. at 1035, the court suggested (without deciding) that employees at will lack contractual relationships for purposes of § 1981: Arguably, since Gonzalez was an employee at-will, and did not have any contractual rights regarding the term of her employment, she cannot claim that she was discriminated against with respect to Ingersoll’s layoff. Id. at 1035. In reaching this determination, the court relied on district court cases in other circuits that had dismissed § 1981 claims brought by at will employees, finding no underlying contractual relationship. Id. at 1035 (citing Moorer v. Grumman Aerospace Corp., 964 F.Supp. 665 (E.D.N.Y.1997), Moscowitz v. Brown, 850 F.Supp. 1185 (S.D.N.Y.1994), Askew v. May Merchandising Corp., 1991 WL 24390, 1991 U.S.Dist. LEXIS 1919 (S.D.N.Y.1991)). Since Gonzalez, however, the Fourth and Fifth Circuits have squarely resolved this issue, each holding that at will employment relationships are contractual for purposes of § 1981. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015 (4th Cir.1999) (“Having concluded that an at-will employment relationship is contractual, we hold that such relationships may therefore serve as predicate contracts for § 1981 claims”); Fadeyi v. Planned Parenthood Assoc. of Lubbock, Inc., 160 F.3d 1048, 1049, 1998 U.S.App. LEXIS 28351, *5 (5th Cir., Nov. 11, 1998) (“We conclude that the better view is that, irrespective of being subject to at-will termination, such an employee stands in a contractual relationship with his employer, and may maintain a cause of action under § 1981”). The courts reasoned that, even though at will employees have no contractual rights to specific terms of employment, they nevertheless have contracts. See Fadeyi, 160 F.3d at 1049-50, 1998 U.SApp. LEXIS 28351, at *4-5 (noting that under Texas law, “an at-will employment relationship is a contract, notwithstanding that either party may terminate it at will”); Spriggs, 165 F.3d at 1018, 1999 WL 34938, at *3 (noting that under Maryland law, “at-will employment is a contract of indefinite duration that may be terminated at the pleasure of either party at any time”), (citation omitted). Therefore, “an" }, { "docid": "22778920", "title": "", "text": "not challenge the timeliness of Manatt's § 1981 claim. .Other circuits are in accord. See, e.g., Foley v. Univ. of Houston Sys., 324 F.3d 310, 316 (5th Cir.2003) (holding that \"an employee's claim that he was subjected to retaliation because he complained of race discrimination is a cognizable claim under § 1981(b)”); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998) (\"We remain of the view, in light of the broad sweep of § 1981(b), that a retaliation claim may be brought under § 1981.”); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 (11th Cir.1998) (noting that the legislative history for the 1991 Civil Rights Act supports the conclusion that Congress intended retaliation claims to be cognizable under § 1981(b)); see also O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1258 (10th Cir.2001); Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir.1997). . Notwithstanding this admission, Manatt argues that her volume of work had not declined and that the department was always “busy.” She therefore argues that the Bank cannot articulate a non-discriminatory reason for transferring her. But simply because Ma-natt's volume of work did not decrease does not mean that her work quality was superior to others. Manatt's argument also does not take into account other factors in transfer decisions during downsizing, such as seniority. . Manatt does not argue that the Bank's failure to find her a more substantive position immediately after her United Way work ended was retaliation for her March 1998 complaint. . Manatt argues that she was also a \"priority-placement” employee. Assuming this fact, Manatt asserts that the Bank deviated from its policy of choosing the most qualified \"priority-placement” candidate to fill a position. She says that this deviation from policy is evidence of discrimination. Miller v. Fairchild Indus., Inc., 885 F.2d 498, 506 (9th Cir.1989). We do not accept Manatt’s argument. First, we can find no evidence in the record indicating that Manatt was, in fact, a \"priority placement” employee. The declaration of Paula Ordway, to which Manatt cites, suggests that Manatt would have been a priority placement" }, { "docid": "7539808", "title": "", "text": "it for appeal. He was entitled to wait for a final judgment and then appeal the district court’s ruling on that claim to this court. He has done just that. The second procedural argument that Abbott makes is that Walker waived his challenge to the district court’s dismissal of his § 1981 claim because he failed to ask the district court to reconsider its ruling in light of new decisions from other circuits. The district court dismissed. the § 1981 claim based on dicta in Gonzalez in which this Court speculated that an at-will employment relationship may not be sufficiently contractual to sustain a claim under § 1981. 133 F.3d at 1035. In its ruling, the district court acknowledged that two other circuits had ruled that at-will employees could state claims under § 1981, see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1049-50 (5th Cir.1998), but the district court stated that it felt compelled to follow Gonzalez rather than the cases from other circuits. After the district court’s ruling, three more circuits decided that at-will employees could bring claims under § 1981. See Skinner v. Maritz, 253 F.3d 337, 342 (8th Cir.2001); Lauture v. Int’l Bus. Machs., 216 F.3d 258, 260 (2d Cir.2000); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.1999). Abbott asserts that because Walker never sought to have the district court reconsider its earlier ruling in light of the contrary rulings by three additional circuits, we should hold that Walker has waived his right to challenge the district court’s dismissal of the § 1981 claim. Again, we find this argument wholly without merit. And again, Abbott cites absolutely no authority that creates an obligation to raise a motion to reconsider in order to preserve the argument for appeal. There is simply no rule or case law that requires litigants to move for reconsideration of an interlocutory ruling in order to avoid waiving a challenge to that ruling on appeal of a final decision. Moreover, an analysis of the district court’s ruling reveals" }, { "docid": "16808711", "title": "", "text": "is not relevant to this casé because we look to state law merely to define the nature of the relationship between an at-will employee and his employer. Here, although Turner’s employment was at-will, under Arkansas law such an employment relationship is contractual in nature although it is not based on any independent contractual right. Having made this determination, we now turn to whether it was “clearly established” that an- at-will employee could not be fired for illegal reasons without recourse to the protections afforded by § 1981. While we -take a broad view of all available decisional law when making the determination whether a principal of law was “clearly established,” we necessarily follow a hierarchical framework. First, we must address relevant Supreme Court precedent. In Patterson, the United States Supreme Court, while rejecting the underlying merits of Patterson’s claim, acknowledged that Patterson, an at-will employee, might have a cause of action based on the claims that her employer failed to promote her based on her race. 491 U.S. at 185, 109 S.Ct. 2363. In doing so, the Court stated that “the question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer’s refusal to enter the new contract' is actionable under § 1981.” Id. (emphasis added). As the Fifth Circuit has pointed out, “[t]his language leaves no doubt that the Court considered the employee’s [at-will] relationship with her employer to be a contractual one” for purposes of § 1981 because it is apparent that “there can be no ‘new contract’ unless there is first an old contract.” Fadeyi v. Planned Parenthood Assoc. of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir.1998). Under Patterson, for purposes of § 1981, an employment-at-will relationship is considered a contractual one even though an independent state law contract may not exist. Fadeyi, 160 F.3d at 1051; see also Bishop v. Avera, 177 F.3d 1233, 1236 n. 6 (11th Cir.1999); Spriggs v. Diamond Auto Glass, 165" }, { "docid": "22128252", "title": "", "text": "does not encompass termination terms, an at-will employee cannot bring an action for wrongful termination against her employer under section 1981. See, e.g., Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir.1998) (dicta); see also Gandy v. Gateway Found., No. 97 C 2286, 1999 WL 102777, at *17-*18 (N.D.Ill. Feb. 22, 1999) (magistrate judge’s report and recommendation) (discussing Gonzalez and implying that an at-will employment relationship would only be suffí-cient to support a section 1981 claim for demotion or reduction in pay). Those who advance or embrace this argument reason that because an at-will employee may be discharged at any time, the terms of an at-will employment contract extend only to wages, benefits, duties, and working conditions, but do not encompass the time or manner of termination. Consequently, they conclude that because terminations for any reason or no reason are permissible under the terms of an at-will employment contract, employees cannot bring claims under section 1981 alleging wrongful termination. This position has been explicitly rejected by both the Fourth and Fifth Circuit Courts of Appeal. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1020 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n, 160 F.3d 1048, 1052 (5th Cir.1998). The amendment of section 1981 to include a prohibition against racially discriminatory conduct in the termination of contracts has effectively altered the at-will employment relationship. Although the general rule that an employer can discharge an at-will employee for any reason or no reason is still valid, an employer can no longer terminate an at-will employment relationship for a racially discriminatory reason. See 42 U.S.C. § 1981(b); see also Hopkins, 30 F.3d at 105 (stating that the protections of section 1981 now encompass the termination of the employment relationship). The great weight of well-reasoned authority supports this court’s conclusion that the employment-at-will relationship encompasses sufficient contractual rights to support section 1981 claims for wrongful termination. See, e.g., Spriggs, 165 F.3d at 1018-20; Fadeyi, 160 F.3d at 1049-52; LaRocca v. Precision Motorcars, Inc., 45 F.Supp.2d 762, 774-77 (D.Neb. 1999); O’Neal v. Ferguson Constr. Co., 35 F.Supp.2d 832, 837-38 (D.N.M.1999); Williams v." }, { "docid": "16808712", "title": "", "text": "so, the Court stated that “the question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer’s refusal to enter the new contract' is actionable under § 1981.” Id. (emphasis added). As the Fifth Circuit has pointed out, “[t]his language leaves no doubt that the Court considered the employee’s [at-will] relationship with her employer to be a contractual one” for purposes of § 1981 because it is apparent that “there can be no ‘new contract’ unless there is first an old contract.” Fadeyi v. Planned Parenthood Assoc. of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir.1998). Under Patterson, for purposes of § 1981, an employment-at-will relationship is considered a contractual one even though an independent state law contract may not exist. Fadeyi, 160 F.3d at 1051; see also Bishop v. Avera, 177 F.3d 1233, 1236 n. 6 (11th Cir.1999); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1020 n. 8 (4th Cir.1999); McKnight v. Gen. Motors Corp., 908 F.2d 104, 109 (7th Cir.1990). That is, in Patterson the Court “rejected the notion that § 1981 requires a plaintiff to have an independent contractual right to sue under state law,” but rather “[§ ] 1981 only requires that the employee have a ‘contract.’ ” Skinner, 253 F.3d at 341 n. 2. Properly read, the Patterson decision presumes that at-will employees have “contractual” rights under § 1981 that are enforceable in court. Cf. Haddle v. Garrison, 525 U.S. 121, 126, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998) (at-will employee could bring action under 42 U.S.C. § 1985 because “[t]he kind of interference with at-will employment relations alleged here is merely a species of the traditional torts of intentional interference with contractual relations ”) (emphasis added); see also Estes Assocs., Inc. v. Time Ins. Co., 980 F.2d 1228, 1232 (8th Cir.1992). The foregoing discussion casts serious doubt on Pickens’ claim because Patterson, albeit implicitly, appears to hold that an at-will employee may bring" }, { "docid": "22778919", "title": "", "text": "work environment, as a matter of law, was not so objectively abusive as to alter the conditions of her employment. . Because we conclude that Manatt has not made out the prima facie case for hostile work environment discrimination, we do not address whether the Bank would be entitled to invoke the Faragher affirmative defense to liability. Faragher, 524 U.S. at 806-07, 118 S.Ct. 2275. We do note, however, that when Manatt requested action, her supervisor called her co-workers together and admonished them to stop their behavior. His order was obeyed. . Manatt's various complaints, including the complaint to her supervisor following the \"Lima incident,” were \"protected activities.” See 42 U.S.C. § 2000e-3(a). . This Circuit has defined \"adverse employment action” broadly to mean any employment decision “reasonably likely to deter employees from engaging in protected activity.” Ray, 217 F.3d at 1243. But see Vasquez, 307 F.3d at 891 (narrowing the rule announced in Ray and holding that an employment decision must be objectively adverse to constitute an adverse employment action). . The Bank does not challenge the timeliness of Manatt's § 1981 claim. .Other circuits are in accord. See, e.g., Foley v. Univ. of Houston Sys., 324 F.3d 310, 316 (5th Cir.2003) (holding that \"an employee's claim that he was subjected to retaliation because he complained of race discrimination is a cognizable claim under § 1981(b)”); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998) (\"We remain of the view, in light of the broad sweep of § 1981(b), that a retaliation claim may be brought under § 1981.”); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 (11th Cir.1998) (noting that the legislative history for the 1991 Civil Rights Act supports the conclusion that Congress intended retaliation claims to be cognizable under § 1981(b)); see also O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1258 (10th Cir.2001); Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir.1997). . Notwithstanding this admission, Manatt argues that her volume of work had not declined and that the department was always “busy.” She therefore argues that the Bank" }, { "docid": "3567448", "title": "", "text": "Cir.1990). Dissatisfied with Patterson’s interpretation of the 1866 statute (old § 1981), Congress legislatively reversed Patterson. Rivers v. Roadway Express, Inc., 511 U.S. 298, 305, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 713 (5th Cir.1994). The Civil Rights Act of 1991, enacted November 21, 1991, expanded § 1981 to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship”. § 1981(b). Given that the 1991 Act legislatively overruled Patterson, this Court was confronted on a previous occasion with the question whether the Act also overruled Carter. We found it unnecessary to resolve the issue in the context of that case. Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 376 n. 14 (5th Cir.1998). Some of our sister circuits have concluded that amended § 1981 now covers post-hiring retaliation claims arising after November 21, 1991. Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411-13 (11th Cir.1998). Further, this Court has previously affirmed without opinion a district court decision holding a retaliation claim to be actionable under § 1981(b). Thomas v. Exxon, U.S.A., 943 F.Supp. 751, 761-63 (S.D.Tex. 1996), aff'd 122 F.3d 1067 (5th Cir.1997). It seems unreasonable to believe that in enacting the Civil Rights Act of 1991, Congress intended to make the scope of the new § 1981(b) narrower than that of the old § 1981 as it had been interpreted by this Court and many other federal courts before Patterson. We hold that an employee’s claim that he was subjected to retaliation because he complained of race discrimination is a cognizable claim under § 1981(b). The district court found that at least since 1994 an objectively reasonable public official should have been aware of an employee’s right to be free from retaliation for complaining about race discrimination in employment. We agree with that finding. Nevertheless, the Appellants are protected by qualified immunity unless objectively reasonable officials in their position would" }, { "docid": "9474991", "title": "", "text": "discrimination claims under 42 U.S.C. § 1981. In this connection, defendants persist in the view that Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995), applying Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), forecloses Settle’s claims under § 1981. I reject this reading of Dennis. Settle has sued the individual defendants in their individual capacities — not in their official capacities, as did Harris — and nothing in Dennis suggests that such claims are foreclosed. In the view that I take of the claims on their merits, however, the individual claims fail, just as surely as do the other claims. I also assume — without deciding— that a retaliation claim lies under 42 U.S.C. § 1981. See Carney v. American University, 151 F.3d 1090, 1094 (D.C.Cir.1998)(“[O]ur sister circuits disagree about whether retaliation violates section 1981[:] ... compare, e.g., Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th Cir.1998)(finding cognizable retaliation claim under section 1981), with Von Zuckerstein v. Argonne Nat. Laboratory, 984 F.2d 1467, 1472 (7th Cir.1993)(finding no such claim).”). 1. Preliminary Observations Plaintiffs present this court with a veritable buffet, if not a smorgasbord, of federal employment discrimination claims. It has become quite evident in a growing number of employment discrimination cases in recent years that these cases have begun to pose subtle interpretative and analytical difficulties. In part, this is due to the fact that courts have seen an increasing number of cases in which the ever-blurring line between traditional “discrete act” disparate treatment and retaliation claims, on the one hand, and the more amorphous and ephemeral “hostile work environment” claims, on the other hand, has grown more and more indistinct. Furthermore, courts have begun to see increasing numbers of so-called “retaliatory harassment” claims. See infra pp. 993-95. The knowledgeable reader here is no doubt struck by the fact that, as to their “discrete act” claims, Settle and Harris do not contend that they have been paid less compensation, assigned to more hazardous duty or denied promotions; obviously, they have not been terminated. Indeed, the" }, { "docid": "9474990", "title": "", "text": "the defendants deprived him of First and Fourteenth Amendment guarantees in their treatment of him. I am persuaded, however, after a searching examination of the summary judgment record, that the record establishes, despite the scope and breadth of their complaints, that plaintiffs are not entitled to present any of their claims to a jury and that defendants are entitled to judgment as a matter of law. A. Title Vii And 42 U.S.C. § 1981 The Supreme Court has held that the well-known McDonnell Douglas proof scheme also applies to claims brought under 42 U.S.C. § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and the Fourth Circuit has stated.“the framework of proof for disparate treatment claims — that is, whether the employer intentionally discriminated against the employee — is the same for actions brought under Title VII or § 1981.” Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.1989). Accordingly, my discussion regarding the plaintiffs’ Title VII claims encompasses their intentional racial discrimination claims under 42 U.S.C. § 1981. In this connection, defendants persist in the view that Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995), applying Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), forecloses Settle’s claims under § 1981. I reject this reading of Dennis. Settle has sued the individual defendants in their individual capacities — not in their official capacities, as did Harris — and nothing in Dennis suggests that such claims are foreclosed. In the view that I take of the claims on their merits, however, the individual claims fail, just as surely as do the other claims. I also assume — without deciding— that a retaliation claim lies under 42 U.S.C. § 1981. See Carney v. American University, 151 F.3d 1090, 1094 (D.C.Cir.1998)(“[O]ur sister circuits disagree about whether retaliation violates section 1981[:] ... compare, e.g., Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th Cir.1998)(finding cognizable retaliation claim under section 1981), with Von Zuckerstein v. Argonne Nat. Laboratory, 984" }, { "docid": "23127430", "title": "", "text": "employee and the employer.” Butts v. City of New York Department of Housing, 990 F.2d at 1411 (quoting Patterson, 491 U.S. at 185, 109 S.Ct. 2363). In addition, after Patterson several courts concluded that retaliatory discharge claims, which involved conduct subsequent to contract formation, were not actionable under § 1981. See, e.g., Carter v. South Central Bell, 912 F.2d 832, 840-41 (5th Cir.1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 & n. 17 (11th Cir.1990), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 317 (1990). In response to Patterson, Congress included in the 1991 Act a provision adding a subsection to § 1981, defining the phrase “make and enforce contracts.” That subsection states that ‘“make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Legislative history supports the view that this definition was intended to encompass both a race-based failure to promote and retaliation for a complaint of such a failure to promote: The Committee intends this provision to bar all race discrimination in contractual relations. The list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring. H.R.Rep. No. 102-40(1), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630 (emphasis added). In the aftermath of the 1991 Act, a number of courts have concluded that certain retaliatory discharge claims are actionable under § 1981. See, e.g., Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405, 1412-13 (11th Cir.1998); Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir.1996); Thomas v. Exxon, U.S.A., 943 F.Supp. 751, 762-63 (S.D.Texas 1996), aff'd, 122 F.3d 1067 (5th Cir.1997). We remain of the view, in light of the broad sweep of § 1981(b), that a retaliation claim may be brought under § 1981. However, to be actionable under § 1981, the retaliation must have been in response to the claimant’s assertion" }, { "docid": "22946854", "title": "", "text": "broadly to include all aspects of the contractual relationship between parties, including the postformation conduct, which Patterson had concluded was not actionable under section 1981: For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981(b). And the legislative history pertaining to this subsection confirms that Congress intended retaliation to be included under this provision. See Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 n. 12 (11th Cir.1998) (citing H.R.Rep. No. 40(1), 102d Cong., 1st Sess. 92 (1991), as reprinted in 1991 U.S.C.C.A.N. 549, 630, which states, in part, “[t]he list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” (emphasis added)). The Civil Rights Act of 1991 led several circuits to reverse course (again) and to allow retaliation claims under section 1981. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 339 (5th Cir.2003); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998); Andrews, 140 F.3d at 1412-13; see also Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir.1996) (listing the elements for a prima facie case of retaliation under section 1981). For instance, in Andrews, the Eleventh Circuit noted that prior to Patterson, circuits interpreting section 1981’s “make and enforce contracts” provisions had held that it “encompassed an employee’s claims for an employer’s race-based retaliation during the employment contract.” 140 F.3d at 1410. It observed that while Patterson “drew into question many circuit court decisions recognizing post-hiring discrimination claims under section 1981,” the Civil Rights Act of 1991 reversed whatever limits Patterson placed on imposing liability for postformation conduct. Id. at 1410-12. As a result, the Eleventh Circuit concluded that retaliation claims remained viable under section 1981. Id. at 1412. B. Humphries’s Retaliation Claim Is Cognizable Under Section 1981 1. We Hold that Section 1981" }, { "docid": "9860870", "title": "", "text": "court also declined to exercise supplemental jurisdiction over Lauture’s state law claim. This appeal followed. II. Discussion The district courts in this circuit have divided over whether an at-will employee can maintain a cause of action under § 1981 for racially discriminatory termination. In its brief, two-page decision, the district court concluded that Lauture could not. The district court noted that there were some cases to the contrary, but explained that those cases “appear to represent a minority view.” It is true that some district courts in this circuit have concluded that an at-will employee may not sue for unlawful termination under § 1981. See, e.g., Bascomb v. Smith Barney Inc., 96 Civ. 8747(LAP), 1999 WL 20853, at *4 (S.D.N.Y. Jan. 15, 1999); Moorer v. Grumman Aerospace Corp., 964 F.Supp. 665, 675-76 (E.D.N.Y.1997), aff'd, 162 F.3d 1148, 1998 WL 640438 (2d Cir.1998) (unpublished). Yet, in the past two years alone, three courts of appeals addressing this issue — the Fourth, Fifth, and Tenth Circuits — have concluded that an at-will employee may sue for wrongful discharge under § 1981. See Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1964, 146 L.Ed.2d 796 (2000); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1051-52 (5th Cir.1998) (reh. and suggestion for reh. en banc denied, Dec. 7, 1998). Further, a growing number of district courts in this circuit have also adopted this view. See Hartzog v. Reebok Int'l Ltd., 77 F.Supp.2d 478, 479-80 (S.D.N.Y.1999); Dew v. Health Ins. Plan of Greater New York, 97 Civ. 7006(ILG), 1999 WL 684158, at *4 (E.D.N.Y. July 15, 1999), aff'd, 208 F.3d 202, 2000 WL 282488 (2d Cir.2000) (unpublished); Harris v. New York Times, 90 Civ. 5235(CSH), 1993 WL 42773, at *4 (S.D.N.Y. Feb. 11, 1993). We join the emerging consensus of the district courts in this circuit, and the other circuit courts of appeal that have squarely decided this issue, to hold that an at-will employee may sue under § 1981 for racially discriminatory" } ]

[ { "docid": "22555420", "title": "", "text": "of the investigation caused a run on Ponzi’s Boston office by investors seeking payment and this developed into a wild scramble when, on August 2nd, a Boston newspaper, most widely circulated, declared Ponzi to be hopelessly insolvent, with a full description of the situation written by one of his recent employees. To meet this emergency, Ponzi concentrated all his available money from other banks in Boston and New England in the Hanover Trust Company, a banking concern in Boston, which had been his chief depository. There was no evidence of any gen eral attempt by holders of unmatured notes to secure payment prior to the run which set in after the investigation July 26th. The money of the defendants was paid by them between July 20th and July 24th and was deposited in the Hanover Trust Company. At the opening of business July 19th, the balance of Ponzi’s deposit accounts at the Hanover Trust Company was $334,000. At the close of business July 24th it was $871,000. This sum was exhausted by withdrawals of July 26th of $572,000, of July 27th of $288,000, and of July 28th of $905,000, or a total of more than $1,765,000. In spite of this, the account continued to show a credit balance because new deposits from other banks were made by Ponzi. It was finally ended by an overdraft on August 9th of $331,000. The petition in bankruptcy was then filed. The total withdrawals from July 19th to August 10th were $6,692,000. The claims which have been, filed against the bankrupt estate are for the money lent and not for the 150 per cent, promised. Both courts held that the defendants had rescinded their contracts of loan for fraud and that they were entitled to a return of their money, that other dupes of Ponzi who filed claims in bankruptcy must be held not to have rescinded, but to have remained creditors, so that what the latter had paid in was the property of Ponzi, that the presumption was that a wrongdoing trustee first withdrew his own money from a fund mingled with that" } ]

[ { "docid": "22203545", "title": "", "text": "See Rosenberg v. Arata, 3 B.C.D. 154, 155 (Bkrtcy.N.D.Tex.1977). It is well settled that if funds are commingled with the general funds of the debtor and, hence, are unidentifiable, tracing cannot be accomplished and the claimant must assume the status of a general unsecured creditor. Matter of Plazagal International Corp., 33 B.R. 47, 48-49 (Bkrtcy.S.D.N.Y.1983). See 4 COLLIER ON BANKRUPTCY ¶ 547.19, at 547-65 (15th ed. 1984). Defendants have not endeavored to trace their funds beyond deposit with the debtors. In the typical case in which a constructive trust is sought, the trustee is in possession of property or a fund which the claimant seeks to have exempted from the bankruptcy estate. In the present case, however, the debtors’ funds were virtually exhausted prior to filing their Chapter 11 petitions. If trust funds are deposited in a bank account and mingled with other funds, and the mingled funds are entirely depleted, the trust funds become dissipated and no longer traceable. Schuyler v. Littlefield, 232 U.S. 707, 710, 34 S.Ct. 466, 466-467, 58 L.Ed. 806 (1914); Johnson v. Morris, 175 F.2d 65, 67 (10th Cir.1949). See 4 COLLIER ON BANKRUPTCY 11541.13, at 541-69 (15th ed. 1983). Cf. Texas and Pacific Railway Co. v. Pottorff supra 291 U.S. at 261-62, 54 S.Ct. at 420 (in the absence of a trust res a constructive trust will not be imposed to confer a preference to one creditor). Defendants cited four cases in support of their position, In re Teltronics, Ltd., 649 F.2d 1236 (7th Cir.1981), In re Paragon Securities Co., 589 F.2d 1240 (3d Cir.1978), Nicklaus v. Bank of Russellville, 336 F.2d 144 (8th Cir.1964), Corporation of the President of the Church of Jesus Christ of Latter-Day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984, 38 A.L.R.3d 1350 (1970), each of which can be distinguished from the present case on factual and legal grounds. In In re Teltronics, supra, 649 F.2d at 1236, the debtor defrauded thousands of consumers who responded to magazine advertisements offering digital watches for sale. The watches were never delivered and the principal of the debtor absconded with" }, { "docid": "22203553", "title": "", "text": "v. Whidden, 57 F.2d 631, 632 (5th Cir.1932). A constructive trust is an equitable restitutionary remedy. It is imposed by a court of equity when retention of the property by a defendant would result in his unjust enrichment. The term “constructive trust” simply connotes a method of preventing unjust enrichment, whereby a court of equity construes a particular situation as if the property were held by the defendant in trust for the plaintiff, with the sole trust obligation being to convey the property to the plaintiff. Even if fraud on the part of the debtors would have given defendants the right to rescind their contracts, trace their deposits, and impress a constructive trust upon them, that is not what occurred. The defendants did not rescind their contracts but accepted monthly payments in accordance with the express terms thereof. When we stop to consider the injustice that would result if a constructive trust were erected in the manner urged by defendants, we instantly see that a court of equity would never sanction such an act. If this Court were to hold that a debtor’s fraud nullified the trustee’s avoiding powers, a basic purpose of the bankruptcy law would be thwarted. Preferential and fraudulent transfers would be allowed to stand and certain favored creditors would reap the benefit of the debtor’s wrongdoing. It would lend judicial support to “Ponzi” schemes by rewarding early investors at the expense of later victims. Here, as in Cunningham v. Brown, supra, 265 U.S. at 13, 44 S.Ct. at 427, “the circumstances ... call strongly for the principle that equality is equity.” Thus, both the policy of the Bankruptcy Code and well settled principles of restitution dictate that a constructive trust not be impressed upon the funds received by defendants. Cf. United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971) (the bankruptcy law is an overriding expression of federal policy which may preclude the imposition of a constructive trust against assets of the estate, even where the elements of a constructive trust are present). Having concluded that defendants’ argument regarding property obtained" }, { "docid": "11564812", "title": "", "text": "purchasers, that Drexel-Moseley’s entitlement to a constructive trust on the Escrow Fund is so clear that Judge Weiner abused his discretion by approving a settlement that, in effect, bargained away almost half of it. They assert that the Escrow Fund never became “property of the estate” under 11 U.S.C. § 541 (1982), pointing to the principle that a Trustee in Bankruptcy can have no interest in property acquired by the fraud of a bankrupt, or anyone else, as against the claim of the rightful owner of such property. s}s sj: sjs # # Property obtained by fraud of the bankrupt, or by other tort, is not properly a part of the assets of a bankrupt’s estate. Nicklaus v. Bank of Russellville, 336 F.2d 144, 146, 147 (8th Cir.1964); see also, e.g., In re Teltronics, Ltd., 649 F.2d 1236, 1239 (7th Cir.1981). We agree that Nicklaus correctly states the general rule. Under § 541(a)(1), the bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” This principle is refined in § 541(d): Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property ... becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. Thus, where, under state law, the debtor’s fraud or other wrongful conduct gives rise to a constructive trust, so that the debtor holds only bare legal title to the property, subject to a duty to reconvey it to the rightful owner, the estate will generally hold the property subject to the same restrictions. E.g., In re Shepard, 29 B.R. 928, 931-32 (Bkrtcy.M.D.Fla.1983); 4 Collier on Bankruptcy 11541.13 (15th ed. 1983). The appellees argue, however, that where, as here, the constructive-trust claim is based on a security holder’s allegation of fraud, the general rule does not apply. They point" }, { "docid": "8933831", "title": "", "text": "debtor whose check was no good, but to the Depositary who would have, by logical extension, used its own funds to pay the Internal Revenue Service. Accordingly, I find these funds are not part of the estate and the plaintiff is entitled to the return of the amount in question as its trust funds. Because I find that by implication and from circumstances clearly showing that the debtor was a mere conduit for payment of taxes and, therefore, a trust existed between the plaintiff and the debtor, for purposes of the return of the tax payment to the plaintiff, I need not discuss the other counts regarding a constructive trust, bail-ments, or fraud. However, since the Court asked the parties to specifically brief one additional aspect, the Court feels constrained to discuss that issue. That issue raised primarily in Count 3 concerns the obvious misrepresentation of the Depositary Bank to the Federal Reserve Bank and Internal Revenue Service, of payment having been made by a check based, on insufficient funds. Can the debt- or — now the trustee — claim the refund, based on what amount, to a fraudulent statement? After all, the bank certainly knew that at all times there was in fact sufficient funds in the debtor’s account to honor the check. Property obtained by fraud of the debtor or of another is not part of the debtor’s estate. See Nicklaus v. Bank of Russellville, 336 F.2d 144, 146-147 (8th Cir.1964); In re Teltronics, Ltd,. 649 F.2d 1236, 1239 (7th Cir.1981); cf. 4 Collier on Bankruptcy, 11 541.13 (15th ed. 1983). The debtor acquired possession of the refund because the Depositary requested and received it from the Internal Revenue Service. The debtor, after, belatedly, forwarding the plaintiff’s money to the Depositary Bank, sought to stop payment of the original $48,351.99 check. While such attempt was ultimately unsuccessful when the Depositary debited the amount to its account, that did not effect the Internal Revenue Service or the plaintiff. The debtor’s recourse, if any, was against the Bank. Instead, the debtor withdrew the stop-payment order and engaged in its skirmish" }, { "docid": "19800751", "title": "", "text": "said that the receiver is powerless to give the consumers their money back because of the very fraud which took it from them. The bankruptcy rule simply does not apply to a receivership under the Consumer Fraud Act. Thompson v. Magnolia Petroleum Co., if it applies at all here, militates in favor of our decision. While holding that the Bankruptcy Court may determine disputes over property in the bankrupt’s estate, Thompson also held that the court’s jurisdiction should not be exercised when the dispute concerns purely local questions. 309 U.S. at 483-84. Section 268 of the Consumer Fraud Act has not yet been interpreted by the Illinois courts. If the trustee wishes to contest the receiver’s power under that section, he should do so in the state courts. B Retreating from a frontal attack on the state court receiver’s powers, appellant next attempts to ambush Nicklaus v. Bank of Russellville, 336 F.2d 144 (8th Cir. 1964), the leading case establishing that the bankrupt’s estate does not include property obtained by fraud. The bankrupt in Nicklaus had swindled some bonds from the Bank of Russellville. By the time of bankruptcy, however, the bank had gotten the bonds back. The bank answered, in response to the bankruptcy trustee’s turnover suit, that it possessed the very bonds the bankrupt had swindled. Id. at 146. Here the property cannot be so easily identified. Since Roberts deposited the money in several bank accounts over a period of time, a customer can only roughly identify which money is his or hers. According to appellant, these circumstances violate the tracing rule of Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924); see 4A Collier ¶ 70.41 at 498. Cunningham held that a rescission for fraud creates a resulting trust in favor of the defrauded person. However, to recover the trust funds, the defrauded person must be able to trace his money to where the cestui que trustent applied it, the Court held. 265 U.S. at 11, 44 S.Ct. at 426. The Court further held that tracing money to a fund “wholly made up" }, { "docid": "23169685", "title": "", "text": "under applicable modern law, a person who acquires property of another by fraud has no title to or interest in the property whatsoever. As support for this proposition, appellants cite Corporation of the President of the Church of Jesus Christ of Latter-day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (1970). There, the Utah Supreme Court stated: Where one has stolen or embezzled the money or property of another, he obtains no title whatsoever. A constructive trust may be impressed upon it in his hands; and equity may continue the trustee effective against any subsequent transferee, unless transferred to a bona fide purchaser and under circumstances where equity would require a different result. 467 P.2d at 985. Appellants argue that the same rule applies to one who obtains money by fraud — that is, that he obtains no title to the money. See Heyman v. Kemp (In re Teltronics, Ltd.), 649 F.2d 1236, 1239 (7th Cir.1981) (“it is settled that property obtained by fraud of the bankrupt is not part of the bankrupt’s estate”). See also, Giannone v. Cohen (Matter of Paragon Sec. Co.), 589 F.2d 1240, 1242 (3d Cir.1978); Nicklaus v. Bank of Russellville, 336 F.2d 144, 146-47 (8th Cir.1964) (a trustee in bankruptcy “can have no interest in property acquired by the fraud of a bankrupt” since property obtained by the fraud of the bankrupt “is not properly a part of the assets of a bankrupt’s estate”). They reason that if the debtors never had any interest in the money, then it was never the debtors’ “property,” and the trustee could not avoid the transfers pursuant to section 548. The trustee does not dispute the fact that all of the money he seeks to recover was obtained by the debtors’ fraud. He nevertheless contends that the money was the property of the debtors. Resolution of the issue of ownership of the funds requires an understanding of the effect of fraud on transactions such as those involved in this case. We are not convinced that Jolley and the other cases cited by appellants represent the change in" }, { "docid": "11564811", "title": "", "text": "for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law. Anderson, supra, 390 U.S. at 434, 88 S.Ct. at 1168. Nonetheless, if the record contained adequate facts to support the decision of the trial court to approve the proposed compromises, a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based. Id. at 437, 88 S.Ct. at 1170. Here, the record reflects that the District Court had before it the information necessary to consider the fairness of the Sharing Agreement. All the arguments made before us were presented to the District Court. Accordingly, we shall review the District Court’s action on the basis of the record before us. C. STRENGTH OF THE CONSTRUCTIVE-TRUST CLAIM Drexel-Moseley, Fox, and Reavis & McGrath argue that the Sharing Agreement is unfair to the June 1982 purchasers, that Drexel-Moseley’s entitlement to a constructive trust on the Escrow Fund is so clear that Judge Weiner abused his discretion by approving a settlement that, in effect, bargained away almost half of it. They assert that the Escrow Fund never became “property of the estate” under 11 U.S.C. § 541 (1982), pointing to the principle that a Trustee in Bankruptcy can have no interest in property acquired by the fraud of a bankrupt, or anyone else, as against the claim of the rightful owner of such property. s}s sj: sjs # # Property obtained by fraud of the bankrupt, or by other tort, is not properly a part of the assets of a bankrupt’s estate. Nicklaus v. Bank of Russellville, 336 F.2d 144, 146, 147 (8th Cir.1964); see also, e.g., In re Teltronics, Ltd., 649 F.2d 1236, 1239 (7th Cir.1981). We agree that Nicklaus correctly states the general rule. Under § 541(a)(1), the bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” This" }, { "docid": "22203543", "title": "", "text": "their deposits, it is not sufficient to prove that the trust property went into the general assets of the insolvent estate. Texas and Pacific Railway Co. v. Pottorff 291 U.S. 245, 261 n. 19, 54 S.Ct. 416, 420 n. 19, 78 L.Ed. 777 (1934); Blumenfeld v. Union National Bank, 38 F.2d 455, 457 (10th Cir.1930); G. Bogert, THE LAW OF TRUSTS AND TRUSTEES, supra § 921, at 367-69; 4A COLLIER ON BANKRUPTCY, supra it 70.25[2], at 355-56. This concept was firmly clarified by the United States Supreme Court in Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924), which involved a fact situation virtually identical to the present case. Cunningham v. Brown, supra, was a suit by the trustee of the estate of Charles Ponzi to recover as preferences certain payments to Ponzi’s investors. The defendants were investors who, upon learning of the fraud, presented their notes for cancellation and received back their investments. The lower courts held that the payments were not preferences and that the defendants had rescinded their contracts for fraud and were entitled to a return of their money. The Supreme Court reversed the lower courts, holding that the payments constituted voidable preferences under the former Bankruptcy Act. The Court found that even if the payments constituted rescission for fraud, the defendants had failed to trace the money loaned to Ponzi into the payments received: Whether they sought to rescind, or sought to get their money as by the terms of the contract, they were, in their inability to identify their payments, creditors and nothing more. It is a case the circumstances of which call strongly for the principle that equality is equity, and this is the spirit of the bankruptcy law. Those who were successful in the race of diligence violated not only its spirit but its letter and secured an unlawful preference. Cunningham v. Brown, supra, 265 U.S. at 13, 44 S.Ct. at 427. In the present case, tracing presents a serious problem for defendants. Their funds were not earmarked, but commingled when collected with sums deposited by other investors." }, { "docid": "22203542", "title": "", "text": "victims. See THE LAW OF RESTITUTION, supra § 3.4, at 238. Because the effect of imposing a constructive trust is to give a preference or priority over other creditors, the burden is on the claimant to trace the trust funds. 4A COLLIER ON BANKRUPTCY, supra, U70.25[2] at 354-55. See John Deere Plow Co. v. McDavid, 137 F. 802, 811-12 (8th Cir.1905). In Morris Plan Industrial Bank of New York v. Schorn, 135 F.2d 538, 539 (2d Cir.1943), the court stated: “[PJroperty converted, embezzled, or otherwise taken by the bankruptcy, or obtained by him by fraud, can be claimed from the bankruptcy estate only so long as it can be definitely traced, with the consequence that an attempted repayment by the bankrupt prior to bankruptcy is a preference, except where made from the very property taken. Accord, Little v. Chadwick, 151 Mass. 109, 23 N.E. 1005 (1890). See Kamberg v. Springfield National Bank, 293 Mass. 24, 199 N.E. 339, 103 A.L.R. 306 (Mass.1935); Walser v. International Union Bank, 21 F.2d 294, 298 (2d Cir.1927). In tracing their deposits, it is not sufficient to prove that the trust property went into the general assets of the insolvent estate. Texas and Pacific Railway Co. v. Pottorff 291 U.S. 245, 261 n. 19, 54 S.Ct. 416, 420 n. 19, 78 L.Ed. 777 (1934); Blumenfeld v. Union National Bank, 38 F.2d 455, 457 (10th Cir.1930); G. Bogert, THE LAW OF TRUSTS AND TRUSTEES, supra § 921, at 367-69; 4A COLLIER ON BANKRUPTCY, supra it 70.25[2], at 355-56. This concept was firmly clarified by the United States Supreme Court in Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924), which involved a fact situation virtually identical to the present case. Cunningham v. Brown, supra, was a suit by the trustee of the estate of Charles Ponzi to recover as preferences certain payments to Ponzi’s investors. The defendants were investors who, upon learning of the fraud, presented their notes for cancellation and received back their investments. The lower courts held that the payments were not preferences and that the defendants had rescinded their" }, { "docid": "1674415", "title": "", "text": "and that neither in law nor in morals would the trustee be justified in holding goods obtained by the fraud of the bankrupt for the benefit of other creditors. Such creditors have no right to profit by the fraud of the bankrupt to the wrong and injury of the party who has been deceived and defrauded. This does not result in a preference in favor of the seller who thus retakes goods obtained from him by fraud, because in such case the seller retakes his own property which he must be able to identify. Manly v. Ohio Shoe, 25 F.2d at 385 (citations omitted). While agreeing that creditors generally should not benefit at the expense of those defrauded by the debtor, equity demands otherwise where the creditors are victims of the same fraud. The bankruptcy trustee in Merrill v. Abbott (In re Independent Clearing House Co.), 41 B.R. 985 (Bankr.D. Utah 1984), filed two thousand adversary complaints, against investors in a “Ponzi” scheme, to recover alleged preferences and fraudulent transfers. Defendant transferees maintained the funds the trustee sought to recover were impressed with a constructive trust and never became property of the debtors’ consolidated estate. Bankruptcy Judge Allen noted an important distinction between the avoidance proceedings in Independent Clearing House and cases such as In re Teltronics and Nicklaus v. Bank of Russellville, involving identifiable property composing a trust res. The same distinction exists in the instant proceedings where, as in Independent Clearing House, the monies at issue are not on hand. Declining to retroactively validate transfers of unidentifiable funds — the defendants’ investments were commingled with other funds — because doing so would operate detrimentally against other equally innocent investors, not against the fraudulent debtors, Judge Allen concluded: The defendants did not rescind their contracts but accepted monthly payments in accordance with the express terms thereof. When we stop to consider the injustice that would result if a constructive trust were erected in the manner urged by defendants, we instantly see that a court of equity would nevér sanction such an act. If this Court were to hold that" }, { "docid": "22808722", "title": "", "text": "B.R. at 999 (concluding that ”[f]unds obtained from investors in a ‘Ponzi’ scheme are property, and are as susceptible of preferential and fraudulent disposition as other property\"); see also id. at 1011 (“Property of the debtor includes preferences and fraudulent conveyances recovered by the trustee”). The bankruptcy court’s approach begs the question. Transfers to investors in a Ponzi scheme are only preferential and fraudulent within the meaning of the Code if they were transfers of \"property of the debtor\" or of “an interest of the debtor in property.\" The bankruptcy court’s approach presupposes that the transfers were of the debtors’ property and therefore avoidable. If the transfers are avoidable, they are clearly property of the estate. But if the debtor had no interest in the property transferred, the transfers are not avoidable to begin with.. Despite the bankruptcy court’s misstatement of the issue, it correctly concluded that property obtained by fraud does not always escape the debtor’s estate. . The bankruptcy court may have misper-ceived the trustee’s third claim. That court correctly stated that the trustee's third claim \"seeks to set aside and recover all payments made to investors within the year preceding filing of the bankruptcy petitions,” but concluded that the defendants named in the third claim were \"net losers, having received from 3 percent to 76 percent of their original investments.” 41 B.R. at 1005. This conclusion is apparently the result of misreading the Bagley affidavit, which formed the basis for the bankruptcy court's statement of undisputed facts. Dr. Bagley stated that the undertakers’ \"return on investment” varied from 0 to 76 percent, depending on the month in which a particular undertaker advanced funds to the clearinghouse. Bagley affidavit ¶ 23. The bankruptcy court read the phrase \"return on investment” as \"return of investment\" and concluded that no defendant recouped the full amount of the funds he advanced. However, the very next paragraph of Dr. Bagleys affidavit states that some undertakers \"were fully repaid out of the investment scheme early and suffered no net loss.” Id. ¶24. Moreover, the Bagley affidavit lists, in exhibit D, those defendants who" }, { "docid": "23169686", "title": "", "text": "estate”). See also, Giannone v. Cohen (Matter of Paragon Sec. Co.), 589 F.2d 1240, 1242 (3d Cir.1978); Nicklaus v. Bank of Russellville, 336 F.2d 144, 146-47 (8th Cir.1964) (a trustee in bankruptcy “can have no interest in property acquired by the fraud of a bankrupt” since property obtained by the fraud of the bankrupt “is not properly a part of the assets of a bankrupt’s estate”). They reason that if the debtors never had any interest in the money, then it was never the debtors’ “property,” and the trustee could not avoid the transfers pursuant to section 548. The trustee does not dispute the fact that all of the money he seeks to recover was obtained by the debtors’ fraud. He nevertheless contends that the money was the property of the debtors. Resolution of the issue of ownership of the funds requires an understanding of the effect of fraud on transactions such as those involved in this case. We are not convinced that Jolley and the other cases cited by appellants represent the change in the common law that appellants claim they do. The debtors in these cases solicited investments from “undertakers,” who signed “investor contracts” by which they committed to the debtors a specified sum of cash, credit or commodities for a specified period of time, typically nine months or less. The principal amount was to be returned to the investor when the contract expired. Undertakers could elect to receive fixed monthly interest payments for the life of the contract or to receive a single, lump-sum interest payment at the expiration of the contract. The funds committed were to remain under the debtors’ custody and control. The money invested in the debtor enterprises was kept in a common fund, from which payments of interest and principal were made, at least initially, according to the terms of the investor contracts. Because the debtors never conducted any legitimate business and thus had no real earnings, they used funds that other undertakers had committed to make the payments of interest and principal to other undertakers. As a general rule, such fraud vitiates" }, { "docid": "22203554", "title": "", "text": "this Court were to hold that a debtor’s fraud nullified the trustee’s avoiding powers, a basic purpose of the bankruptcy law would be thwarted. Preferential and fraudulent transfers would be allowed to stand and certain favored creditors would reap the benefit of the debtor’s wrongdoing. It would lend judicial support to “Ponzi” schemes by rewarding early investors at the expense of later victims. Here, as in Cunningham v. Brown, supra, 265 U.S. at 13, 44 S.Ct. at 427, “the circumstances ... call strongly for the principle that equality is equity.” Thus, both the policy of the Bankruptcy Code and well settled principles of restitution dictate that a constructive trust not be impressed upon the funds received by defendants. Cf. United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971) (the bankruptcy law is an overriding expression of federal policy which may preclude the imposition of a constructive trust against assets of the estate, even where the elements of a constructive trust are present). Having concluded that defendants’ argument regarding property obtained by fraud lacks merit, the Court now turns to the various causes of action alleged in the trus tee’s amended complaint. For its own convenience in analyzing these claims, the Court shall consider them in an inverted order. Trustee’s Third Cause of Action The trustee’s third cause of action seeks to set aside and recover all payments made to investors within the year preceding filing of the bankruptcy petitions, notwithstanding the fact that these defendants are net losers, having received from 3 percent to 76 percent of their original investments. The trustee argues that restitution of all sums paid to investors would enable him to redistribute such funds ratably among all investors, including the 924 who received nothing, thereby promoting the fundamental bankruptcy policy of equality of distribution. Not surprisingly, direct authority on this issue is lacking. In his memorandum, the trustee has endeavored to convey a convincing version of a rather vague theory. Irrespective of the authorities cited by the trustee, it would be difficult, if not impossible, to sanction the result for which" }, { "docid": "1193338", "title": "", "text": "(fraudulent transaction). Dietz argues that the prior cases are distinguishable from this since, under the state law applicable at the time, one who obtained possession of property had defea-sible title to the property, even if he obtained it by tortious or criminal means. On the other hand, he argues, under applicable modern law a person who acquires property of another by fraud has no title to or interest in the property whatsoever. As support for this proposition, Dietz cites Corporation of the President of the Church of Jesus Christ of Latter-day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (1970). There, the Utah Supreme Court stated, without citation: Where one has stolen or embezzled the money or property of another, he obtains no title whatsoever. A constructive trust may be impressed upon it in his hands; and equity may continue the trustee effective against any subsequent transferee, unless transferred to a bona fide purchaser and under circumstances where equity would require a different result. 467 P.2d at 985. Dietz argues that the same rule applies to one who obtains money by fraud — that is, that he obtains no title to the money. See Heyman v. Kemp (In re Teltronics, Ltd.), 649 F.2d 1236, 1239 (7th Cir.1981) (“it is settled that property obtained by fraud of the bankrupt is not part of the bankrupt’s estate”). See also, Giannone v. Cohen (Matter of Paragon Sec. Co.), 589 F.2d 1240, 1242 (3d Cir.1978); Nicklaus v. Bank of Russellville, 336 F.2d 144, 146 & 147 (8th Cir.1964) (a trustee in bankruptcy “can have no interest in property acquired by the fraud of a bankrupt” since property obtained by the fraud of the bankrupt “is not properly a part of the assets of a bankrupt’s estate”). Dietz reasons that if the debtors never had any interest in the money, then it was never the debtors’ “property,” and the trustee could not recover it pursuant to section 548. The trustee does not dispute the fact that all of the money he seeks to recover was obtained by the debtors’ fraud. He nevertheless contends" }, { "docid": "16084616", "title": "", "text": "they could have established a lien for what was due them in any particular fund of which [the debtor] had made it a part. These things they could do without violating any statutory rule against preference in bankruptcy, because they would then have been endeavoring to get their own money, and not money in the estate of the bankrupt. But to succeed they must trace the money, and therein they have failed. Cunningham, 265 U.S. at 11, 44 S.Ct. at 426 (emphasis added). [It is a] well settled rule that property converted, embezzled, or otherwise taken by the bankrupt, or obtained by him by fraud, can be claimed from the bankrupt estate only so long as it can be definitely traced, with the consequence that an attempted repayment by the bankrupt prior to the bankruptcy is a preference. Morris Plan Industrial Bank of New York v. Schorn, 135 F.2d 538, 539 (2d Cir.1943). In In re Independent Clearing House Co., 41 B.R. 985, 999 (Bkrtcy Utah 1984), aff'd in part, rev’d in part on other grounds, 62 B.R. 118 (D.Utah 1986), aff'd in part, rev’d in part on other grounds en banc, 77 B.R. 843 (D.Utah 1987), the bankruptcy judge noted: As to fraudulent conveyances and preferences, the trustee has the rights of a judgment creditor as well as the powers specifically conferred by the bankruptcy law. Dudley v. Easton, 104 U.S. (14 Otto) 99, 103, 26 L.Ed. 668 (1881). When exercising his avoiding powers the trustee is not asserting a cause of action belonging to the debtor, but is acting in a representative capacity on behalf of all the creditors. Fairbanks Shovel Co. v. Wills, 240 U.S. 642, 648, 36 S.Ct. 466, 468, 60 L.Ed. 841 (1916); In re Onondaga Litholite Co., 218 F.2d 671, 674, 50 A.L.R.2d 308 (2d Cir.1955); In re McDonald, 173 F. 99, 102 (D.Mass.1908); In re Best Pack Seafoods, Inc., 29 B.R. 23, 24 (Bkrtcy.D.Me.1983). In the exercise of such powers, the trustee enjoys greater rights than the pre-pe-tition debtor ... Funds obtained from investors in a “Ponzi” scheme are property, and are as" }, { "docid": "15661557", "title": "", "text": "excludes property from the bankruptcy estate, a claimant must: (1) prove the existence of the trust; and (2) trace the identity of his property. Schuyler v. Littlefield, 232 U.S. 707, 34 S.Ct. 466, 58 L.Ed. 806 (1914); 4 A Collier on Bankruptcy, 17025[1] (14th Ed. J. Moore 1975). Under the present circumstances, none of the customers of the bankrupt could successfully trace his or her funds so as to sustain a claim for reclamation in the bankruptcy on a constructive trust theory because all of the funds from the 900 customers of the bankrupt were co-mingled in a single back account, which was used for personal and business purposes of the bankrupt, as well as commodity trading. Based on Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924), appellants had the burden to trace and identify their funds. Cunningham v. Brown was a result of the then unique criminal scheme of the infamous Charles Ponzi. Ponzi se duced customers into loaning him money on the written promise that he would pay them, in ninety days, three dollars for every two dollars loaned to him. The funds were deposited in bank accounts, and Ponzi used these bank accounts to pay profits after ninety days. The profits were illusory, of course, being only the funds received from new customers. After Ponzi’s ingenious scheme collapsed, his bankruptcy trustee brought preference actions against those who were repaid only their original loan. These customers argued that they had only been repaid what was theirs. The court granted judgment to the bankruptcy trustee, stating that: . to succeed, they [Ponzi’s customers] must trace the money, and therein they have failed. . . . There was, therefore, no money coming from them [the bank accounts] upon which a constructive trust, or an equitable lien could be fastened. . . . [Cases omitted.] In such a case, the defrauded lender becomes merely a creditor to the extent of his loss and a payment to him by the bankrupt within the prescribed period of four months [now one year] is a preference. 265 U.S. at" }, { "docid": "1193339", "title": "", "text": "rule applies to one who obtains money by fraud — that is, that he obtains no title to the money. See Heyman v. Kemp (In re Teltronics, Ltd.), 649 F.2d 1236, 1239 (7th Cir.1981) (“it is settled that property obtained by fraud of the bankrupt is not part of the bankrupt’s estate”). See also, Giannone v. Cohen (Matter of Paragon Sec. Co.), 589 F.2d 1240, 1242 (3d Cir.1978); Nicklaus v. Bank of Russellville, 336 F.2d 144, 146 & 147 (8th Cir.1964) (a trustee in bankruptcy “can have no interest in property acquired by the fraud of a bankrupt” since property obtained by the fraud of the bankrupt “is not properly a part of the assets of a bankrupt’s estate”). Dietz reasons that if the debtors never had any interest in the money, then it was never the debtors’ “property,” and the trustee could not recover it pursuant to section 548. The trustee does not dispute the fact that all of the money he seeks to recover was obtained by the debtors’ fraud. He nevertheless contends that the money was “property” of the debtors. Resolution of to whom the funds belonged requires an understanding of the effect of fraud on transactions such as those involved in this case. We are not convinced that Jolley and the other cases cited by Dietz represent the change in the common law that he claims they do. The debtors in these cases solicited investments from the defendants and other “undertakers,” who signed “investor contracts” by which they committed to the debtors a specified sum of cash, credit or commodities. The funds were committed for a period of nine months, at which time the principal amount was to be returned. Investors could elect to receive fixed monthly interest payments over the nine months or receive a single, lump-sum interest payment at the end of the nine-month period. The funds committed were to remain under the debtors’ custody and control. The money invested in the debtor enterprises went into a common fund, from which payments of interest and principal were made, at least initially, according to the" }, { "docid": "23169684", "title": "", "text": "Stat. 2549 (codified as amended primarily in 11 U.S.C.A. §§ 1-1146 (1979 & Supp. 1985) and scattered sections of 28 U.S.C.A. (1965-76 & Supp.1985)), that a trustee in bankruptcy can recover as preferential and fraudulent transfers at least some payments made by the debtor to investors in a Ponzi scheme, indicating that the funds transferred were the property of the debtors. Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924); Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470 (Bankr.D.Nev.1985); Lawless v. Anderson (In re Moore), 39 B.R. 571 (Bankr.M.D.Fla.1984). See also Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980) (not a pure Ponzi scheme); Edmondson v. Bradford-White Corp. (In re Tinnell Traffic Servs., Inc.), 41 B.R. 1018 (Bankr.M.D.Tenn.1984) (fraudulent transaction). Appellants argue that prior cases are distinguishable from this one because, under the state law applicable at the time, one who obtained possession of property had defeasible title to that property, even if he obtained it by tortious or criminal means. On the other hand, they argue, under applicable modern law, a person who acquires property of another by fraud has no title to or interest in the property whatsoever. As support for this proposition, appellants cite Corporation of the President of the Church of Jesus Christ of Latter-day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (1970). There, the Utah Supreme Court stated: Where one has stolen or embezzled the money or property of another, he obtains no title whatsoever. A constructive trust may be impressed upon it in his hands; and equity may continue the trustee effective against any subsequent transferee, unless transferred to a bona fide purchaser and under circumstances where equity would require a different result. 467 P.2d at 985. Appellants argue that the same rule applies to one who obtains money by fraud — that is, that he obtains no title to the money. See Heyman v. Kemp (In re Teltronics, Ltd.), 649 F.2d 1236, 1239 (7th Cir.1981) (“it is settled that property obtained by fraud of the bankrupt is not part of the bankrupt’s" }, { "docid": "23132672", "title": "", "text": "argument is that the debtors were engaged in a Ponzi-type fraudulent scheme, such that the investments did not become part of the debtors’ estate, but were held in a constructive trust for the defrauded creditors. According to these creditors, the transfers alleged to be preferential were actually the restoration of the transferees’ own money. From at least the time of the original “Ponzi” scheme there have been many cases in which defrauded creditors have sought to defend against the trustee’s avoiding powers by advancing the above argument. See e.g. Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924); Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980); Clearing House, 41 B.R. at 998-1004; Lawless v. Anderson (In re Moore), 39 B.R. 571 (Bankr.M.D.Fla.1984); Edmondson v. Bradford-White Corp. (In re Tinnell Traffic Services, Inc., 41 B.R. 1018 (M.D.Tenn.1984). In each case, the court declined the creditors’ request, as this Court must. A constructive trust is a remedial device, within the equitable discretion of the court, by which one who obtained property under inequitable circumstances is deemed to be a trustee for the benefit of one who in good conscience is entitled to it. Danning v. Lum’s, Inc., 86 Nev. 868, 871; 478 P.2d 166 (1970). Since it is a remedy, rather than a substantive right, a constructive trust arises only when imposed by a court. See Tinnell Traffic, 41 B.R. at 1021; Clearing House, 41 B.R. at 999. In the instant case, as in the many cases in which this defense has been raised, the creditors seek the retroactive imposition of a constructive trust, so that they may retain the funds already transferred. The Court need not repeat here the thorough analyses of the courts which have already addressed this issue. See e.g. Clearing House, supra, at 998-1004. It is essential for a constructive trust that the defrauded party trace specific property to the alleged fraud or wrongful conduct. Id. As a general rule, any party who seeks to exempt trust property from the bankruptcy estate must identify the trust res in its original or substituted form. Elliott" }, { "docid": "1674418", "title": "", "text": "preference. Defendant contended: (1) it merely received a return of its own property; and (2) since the debtor obtained the property through fraud, the debtor held the property in constructive trust as trustee for the defendant. Bankruptcy Judge Paine determined that in the absence of a judicial decree imposing a constructive trust the property used to make the restitutionary transfer was property of the debtor. Further, Judge Paine declined to impose a constructive trust: [T]he debtor engaged in a fraudulent scheme in which approximately 10 to 15 creditors were induced to pay the debtor on the basis of false freight bills and invoices. These defrauded customers are unsecured creditors of this bankruptcy estate. To allow the defendant in this case to receive funds paid to the debtor under a constructive trust theory would be detrimental to these unsecured creditors. This court can find no reason to treat the defendant any differently from all the other defrauded creditors in this estate and will not impose a constructive trust for the defendant’s benefit. In re Tinnell Traffic Services, 41 B.R. at 1021-22 (emphasis added and footnote omitted). Accepting defendants’ assertions of fraud as true, hundreds of other investors with claims against SIBC were likewise defrauded. Defendants did not rescind their agreements with SIBC. Instead, they obtained payments — dollar for dollar — in exchange for the surrender of their investment certificates. Those payments were made with monies that were the property of SIBC. Retrospective imposition of a constructive trust insulating those payments from avoidance is contrary to the cardinal bankruptcy policies of equality of distribution and discouragement of a race to dismember a debtor during the slide into bankruptcy. Under the circumstances equitable considerations clearly do not warrant imposing a constructive trust. To the contrary, if the defendants have received avoidable preferences equality between them and the other investors with claims against the SIBC estate is equity. There is some similarity between these actions and Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924), where the trustees in bankruptcy of Charles Ponzi sought to recover alleged preferences. Borrowing" } ]

[ { "docid": "11797852", "title": "", "text": "made for them by the Council and the Retail Clerks. The question of whether a group of employees represents an “accretion” to an existing unit, so that the group is governed by the larger unit’s choice of bargaining representatives, is similar to the issue of a particular unit’s “appropriateness” for purposes of bargaining. See section 9 of the Act, 29 U.S.C. § 159 (1964); Local 620, Allied Industrial Workers of America, AFL-CIO v. NLRB, 375 F.2d 707, 710-711 (6th Cir. 1967). The general outlines of the accretion issue are fairly set out in the Board’s brief: “An ‘accretion’ is, by definition, merely the addition of new employees to an already existing group. When the new employees are added and co-mingled (sic) with existing employees so as to lose their separate identity, their inclusion in an existing unit follows as a matter of course. Questions arise only when the new group remains identifiable, for example, as when they constitute a separate department or store or plant. In these situations * * * the Board will examine the entire picture before permitting the new employees to be swallowed up by the bargaining representative of the employer’s other employees without expressing their wishes in the matter. When such inclusion is permitted, on the basis of criteria developed by the Board and approved by the courts .* * *, the new group is an ‘accretion’ to the old group.” Brief for Petitioner at 10-11 n. 10. The trial examiner’s findings relating to this issue — findings supported by substantial evidence and adopted by the Board — are as follows: “The seven employer members of Respondent Council involved in these proceedings operate retail food markets in Southern California and at all times material herein have been parties to a contract, entered into on their behalf by Respondent Council with Respondent Clerks, effective for a five year term from April 1, 1964 through March 31, 1969. This contract covers retail clerks who are engaged in food, bakery, candy and general merchandise operations and supersedes an earlier agreement between the same parties which ran from January 1," } ]

[ { "docid": "15998202", "title": "", "text": "the benefit of an election, thus assigning to the accreted employees the preexisting unit’s choice of bargaining representative. See Universal Security Instruments, Inc. v. NLRB, 649 F.2d 247, 253 (4th Cir.1981) (citing Lammert Indus. v. NLRB, 578 F.2d 1223, 1225 n. 3 (7th Cir.1978); NLRB v. Sunset House, 415 F.2d 545, 547 (9th Cir.1969)). Because the accretion doctrine is in considerable tension with the statute’s guarantee of employee self-determination, the Board has historically favored employee elections, reserving accretion orders for those rare cases in which it could conclude with great certainty, based on the circumstances, that the employees’ rights of self-determination would not be thwarted. Thus, the Board enters an accretion order only when the accreted employees have an insufficient group identity to function as a separate unit and their interests are so closely aligned with those of the preexisting bargaining unit that the Board can safely assume that the accreted employees would opt into that unit if given the opportunity. See Archer Daniels Midland Co., 333 N.L.R.B. No. 81, 2001 WL 303760, at *6; Safeway Stores, Inc., 256 N.L.R.B. 918, 918, 1981 WL 20532 (1981); Melbet Jewelry Co., 180 N.L.R.B. 107, 110, 1969 WL 23025 (1969); see also Westinghouse Elec. Corp. v. NLRB, 506 F.2d 668, 672-73 (4th Cir.1974) (noting that the Board may not, under the guise of accretion, deny employees an election to express their choice). While a mere finding of a “community of interest” among affected employees may be sufficient to justify the Board’s action in defining a unit to conduct a representation election, Lundy Packing, 68 F.3d at 1581, a decision to accrete employees to a unit without an election requires a showing of much more. Accordingly, the Board has determined that it may issue an order to accrete employees to a preexisting bargaining unit only when the employees have “little or no separate group identity and thus cannot be considered to be a separate appropriate unit” and the community of interest between the employees and the existing unit is “overwhelming.” Safeway Stores, 256 N.L.R.B. at 918; see also Westvaco, 795 F.2d at 1177-78 (applying" }, { "docid": "17789950", "title": "", "text": "Burgess Construction Corp., 227 N.L.R.B. at 765, the Board held that employees of a single employer operating two contracting firms, one union and one nonunion, formed a single bargaining unit. The Board relied “on the fact that all of the employees possess the same skills, perform the same functions, share the same general working conditions, and usually work at the same situs.” Id. These cases contain factual differences that justify a different outcome here. In particular, the R. L. Sweet case involved employees who had a long history of bargaining as part of another unit; and the Burgess case concerned employees who performed under the same supervisors, usually at the same site. Without intimating any view of the appropriateness of the Board’s decision in either case, we do not believe they form precedent so inconsistent with the Board’s decision so as to mandate reversal here. See NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 442-43, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); Columbia Broadcasting System, Inc. v. FCC, 147 U.S. App.D.C. 175, 183, 454 F.2d 1018, 1026 (1971). Furthermore, the Board’s decision is supported by its approach to an analogous issue of labor law — accretion. Accretion is the incorporation of new employees into a preexisting bargaining unit when a community of interest exists between the new and old employees. An accretion decision requires reconciliation of two competing poli cies: the need to insure stability of collective bargaining, NLRB v. Appleton Electric Co., 296 F.2d 202 (7th Cir. 1961), and the need to allow a new group of employees to choose freely their bargaining representative, see NLRB v. Masters-Lake Success, Inc., 287 F.2d 35, 36 (2d Cir. 1961) (per curiam). As a result, the Board has applied accretion restrictively, so as not to tread too heavily on the right of employees to choose their own collective bargaining representative. See NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 140 (3rd Cir. 1976); Westinghouse Electric Corp. v. NLRB, 440 F.2d 7, 11 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971); Sheraton-Kauai Corp. v. NLRB, 429" }, { "docid": "23075717", "title": "", "text": "it could not therefore be committing an unfair labor practice by its demands. There the Company had not contested the accretion so there was no arbitration award. In finding a § 8(b)(1)(A) violation and rejecting the accretion (despite the contractual agreement of the parties), the Board stated: “Assuming that both units may be appropriate ... it does not follow that the Board should permit the employees [of the new store] in the circumstances of this case, to be subject to a contract between the employer and a union without their having had the opportunity to determine for themselves whether or not they wish to be represented by the contractual bargaining representative. “We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing the employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them.” Id. 180 NLRB at 109. See also, Sheraton-Kauai Corp. v. N. L. R. B., 9 Cir. 1970, 429 F.2d 1352. In the instant case it is possible that the broader integrated unit sought by the Teamsters might be found appropriate. It is also quite possible that the unit found appropriate might exclude the Florida operation. There are many reasons militating against the accretion including, inter alia, the totally different employer-worker relationship practiced by Pilot in Florida, the inability of the Teamsters to organize the Pilot workers in Florida, the lack of significant interchange of personnel between Florida and the rest of the system, and the lack of geographical proximity with the rest of the Pilot system. It is certainly not frivolous for the General Counsel to believe an accretion might not be found by the Board. The Board has taken an extremely narrow view of permissible contractual accretions. In Pix Manufacturing Co., 181 NLRB 88 (1970), the Teamsters were defending unfair labor practice charges for pursuing an arbitration award granting a contractual accretion of a new unit. The Board rejected the Teamsters’" }, { "docid": "17789951", "title": "", "text": "F.2d 1018, 1026 (1971). Furthermore, the Board’s decision is supported by its approach to an analogous issue of labor law — accretion. Accretion is the incorporation of new employees into a preexisting bargaining unit when a community of interest exists between the new and old employees. An accretion decision requires reconciliation of two competing poli cies: the need to insure stability of collective bargaining, NLRB v. Appleton Electric Co., 296 F.2d 202 (7th Cir. 1961), and the need to allow a new group of employees to choose freely their bargaining representative, see NLRB v. Masters-Lake Success, Inc., 287 F.2d 35, 36 (2d Cir. 1961) (per curiam). As a result, the Board has applied accretion restrictively, so as not to tread too heavily on the right of employees to choose their own collective bargaining representative. See NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 140 (3rd Cir. 1976); Westinghouse Electric Corp. v. NLRB, 440 F.2d 7, 11 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971); Sheraton-Kauai Corp. v. NLRB, 429 F.2d at 1355-56. In this case, as in accretion cases, the Board was faced with a conflict between the promotion of stable collective bargaining, and the right guaranteed by section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1976) “to bargain collectively through representatives of [the employees] own choosing.” The Board acknowledged the existence of the agreement binding Kiewit to recognize Local 627 as the representative of its employees, but also noted that only a few employees who had worked for Kiewit later worked for South Prairie. 231 N.L.R.B. No. 13, at 7. Given the project-by-project hiring scheme used by these construction companies, it also appears that no construction employees were transferred by Kiewit to South Prairie. Within our limited scope of review, see text at---of 194 U.S.App.D.C., at 848-849 of 595 F.2d supra, we cannot say that the Board’s determination to classify the South Prairie employees as a separate unit was erroneous. Accordingly, the Board’s decision is Affirmed. . The term is used to describe contractors who operate both unionized and" }, { "docid": "9603442", "title": "", "text": "we are unable to say that the Board abused its discretion in making its decision. This is particularly true where the Board has resolved a close' question in favor of permitting the affected employees to choose for themselves their bargaining representatives. N.L.R.B. v. Food Employers Council, Inc., supra 399 F.2d at 505 n. 1. In reaching its conclusion, the Board properly weighed the relevant factors — functional integration of the business, centralized control of management, similarity of working conditions, collective bargaining history, local power to hire and fire, lack of employee interchange, geographical distance. See Barr’s Jewelers, 131 N.L.R.B. 235 (1961); Welch Scientific Co. v. N.L.R.B., 340 F.2d 199 (CA 2, 1965); Local 620, Allied Industrial Workers of America v. N.L.R.B., supra. We hold that there is substantial evidence in the record to support the decision of the Board. Sunset relies upon three prior Labor Board decisions where the Board determined that the larger group was the appropriate bargaining unit. In Lane Drug Co., 160 N.L.R.B. 1147 (1966), the Board held that all the pharmacists in the employer’s 17 stores in and around Toledo constituted the proper bargaining unit. The Board based its decision on the centralized managerial and administrative control over the drugstores, the unified payroll system, the centralized merchandise distribution, systematic pharmacist interchange between stores, and the geographical proximity of the stores. In Meijer Supermarkets, Inc., 142 N.L.R.B. 513 (1963), the Board found that all of the company’s retail stores selling food and non-food items in Grand Rapids and its environs constituted the appropriate unit. The Board held that two new stores which had a different format and emphasized the sale of non-food items and an old store which was changed to be like the two new ones, were an accretion to the existing bargaining unit. The Board reasoned that the centralized control over pricing, inventory, personnel administration, the interchange of both merchandise and personnel between all of the stores, and the geographic integration, indicated that the proper bargaining unit consisted of all the stores. Similarly, in Home Exterminating Co., 160 N.L.R.B. 1480 (1966), the Board found the" }, { "docid": "20067685", "title": "", "text": "ordered: (1) That the company cease and desist from these unfair labor practices and refrain from restraining employees in the exercise of their rights under § 7 of the Act; (2) The company to recognize the union as the collective bargaining agent of the production and maintenance workers at Owings Mills, to apply the terms of the agreement to those employees retroactively, and to make the employees whole for any losses they may have suffered as a result of the unlawful refusal to apply the terms of the agreement to them; (3) The company to bargain upon request by the union, over the transfer of employees to the new plant, the closure of the Hollins Ferry Road plant and the effects on employees of the plant closures; (4) A limited back-pay award to be made to the 29 employees who were laid off after refusing transfers to Owings Mills; (5) The company post appropriate notices at the Owings Mills facility and the Hollins Ferry Road plant, should that plant ever reopen. Universal has asked this court to review the Board’s decision and order and the Board has cross-petitioned for enforcement. II. THE ACCRETION ISSUE The Board found that Universal’s Owings Mills plant constituted an accretion to the Hollins Ferry Road plant as of September 12,1977, the approximate date on which the union representatives requested recognition of the union at Owings Mills. “ ‘An accretion’ occurs when new employees are added to an already existing [bargaining] unit.” N.L.R.B. v. Sunset House, 415 F.2d 545, 547 (9th Cir. 1969). The additional employees are absorbed into the existing unit without first having an election “where these additional employees share a sufficient community of interest with the unit employees and have no separate identity. The additional employees are then properly governed by the unit’s choice of bargaining representative.” Lammert Indus. v. N.L.R.B., 578 F.2d 1223, 1225 n.3 (7th Cir. 1978). If the employees hired and transferred to Owings Mills did constitute an accretion, Universal violated the Act by its failure to bargain, because it unilaterally changed wages, seniority and benefits — all unquestionably “terms" }, { "docid": "20067688", "title": "", "text": "supra; N.L.R.B. v. Security-Columbian Banknote Co., supra. Thus, its finding “should not be set aside unless the reviewing court is convinced that the Board has acted in an arbitrary and capricious manner.” N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d at 794. In making its determination the Board must closely analyze the circumstances of the workers to determine whether the new and old employees truly share a “community of interest.” To do this several factors are scrutinized. These are: (1) similarity of working conditions; (2) job classi fication; (3) skills and functions; (4) similarity of products; (5) interchangeability of employees; (6) geographical proximity; (7) centralization of managerial control; Lammert Indus. v. N.L.R.B., 578 F.2d at 1225; (8) functional integration of the business; (9) collective bargaining history. N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d 785. See also Peter Kiewit Sons’ Co., 231 NLRB 76 (1977). In determining whether a group of employees represents an accretion to an existing unit the Board must consider unique and complex sets of facts in light of the somewhat conflicting policies of stability in bargaining relations, ... and assurance to employees of the right to choose their own bargaining agents. N.L.R.B. v. Food Employers Council, Inc., 399 F.2d 501, 504 (9th Cir. 1968) (citations omitted). Chairman Knepper testified before the ALJ that Owings Mills was established to supplement Hollins Ferry Road’s production of smoke detectors and that both plants produced the same product — the SS-200 model smoke detector — until the October 31 general layoff. Also, workers were required to have similar skills at both plants, demonstrated by the fact that 15 Hollins Ferry Road employees were transferred in October, 1977 to Owings Mills to provide the new plant with experienced workers and to help train newly hired employees. Further, in February, 1978 Universal offered its workers at Hollins Ferry Road transfers to Owings Mills when the company closed down Hollins Ferry Road. Both of these factors tend to show that there were similar skills required at the two facilities. As for geographic proximity Owings Mills was about 27 miles away from" }, { "docid": "20067686", "title": "", "text": "court to review the Board’s decision and order and the Board has cross-petitioned for enforcement. II. THE ACCRETION ISSUE The Board found that Universal’s Owings Mills plant constituted an accretion to the Hollins Ferry Road plant as of September 12,1977, the approximate date on which the union representatives requested recognition of the union at Owings Mills. “ ‘An accretion’ occurs when new employees are added to an already existing [bargaining] unit.” N.L.R.B. v. Sunset House, 415 F.2d 545, 547 (9th Cir. 1969). The additional employees are absorbed into the existing unit without first having an election “where these additional employees share a sufficient community of interest with the unit employees and have no separate identity. The additional employees are then properly governed by the unit’s choice of bargaining representative.” Lammert Indus. v. N.L.R.B., 578 F.2d 1223, 1225 n.3 (7th Cir. 1978). If the employees hired and transferred to Owings Mills did constitute an accretion, Universal violated the Act by its failure to bargain, because it unilaterally changed wages, seniority and benefits — all unquestionably “terms and conditions of employment” within the meaning of § 8(d) of the Act — of employees within a bargaining unit with which Universal already had a collective bargaining agreement. The company’s duty to recognize the accretion is triggered by the request of the bargaining representative to negotiate. Goodyear Tire & Rubber Co., 195 NLRB 767 (1972). A finding of an accretion by the Board is similar to the Board’s certifying a particular group of employees as an appropriate bargaining unit because in both the Board is using its expertise to determine the most appropriate mix of employees for a particular unit. N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d 785, 794 (10th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 302 (1975); N.L.R.B. v. Security-Columbian Banknote Co., 541 F.2d 135, 140-41 (3d Cir. 1976). And, just as when the Board certifies a unit, the Board’s finding of an accretion is a matter which is generally committed to its discretion. N.L.R.B. v. R. L. Sweet Lumber Co., supra; Lammert Indus. v. N.L.R.B.," }, { "docid": "924261", "title": "", "text": "Suit and Allied Garment Workers’ Union, I.L.G.W.U., 494 F.2d 1230, 1244 n.22 (2 Cir. 1974). The validity of the unfair labor practice charges brought in this case turns on the legality of the attempted accretion of the Brentwood employees to the preexisting Bohemia bargaining unit. We have described “accretion” as the “process through which the Board has added new employees to an existing group without holding an election”. Westinghouse Electric Corp. v. NLRB, 440 F.2d 7, 11 n.3 (2 Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971). Because a finding of accretion works to deny the affected employees the opportunity to vote in a representation election, the Board and the courts have given the accretion doctrine a restricted application. Id. at 11; Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1354 (9 Cir. 1970). In the words of Judge Goldberg, the Board has traditionally been reluctant to find an accretion, even where the resulting unit would be appropriate, in those cases where a smaller unit, consisting solely of the accreted unit, would also be appropriate and the § 7 rights of the accreted employees would be better preserved by denying the accretion. Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 795 (5 Cir. 1973). Except for this particular reluctance, the factors used by the Board to determine whether an accretion is valid are generally the same as those employed in determining the appropriateness of proposed bargaining units in representation proceedings. In ruling that reasonable cause did exist to support the Regional Director’s allegations of unfair labor practices, the district court undertook to weigh a number of factors, including “ ‘the functional integration of operations; the differences in the types of work and the skills of employees; the extent of centralization of management and supervision, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange and contact between the groups of employees.’ ” Kaynard v. Mego Corp., supra, 484 F.Supp. at 172, quoting Peter Kiewit Sons’ Co., 231 N.L.R.B. 76, 77 (1977), enforced sub nom., Local 627, International" }, { "docid": "21641039", "title": "", "text": "and Gitano Group, the Board failed to apply its long-standing principles for accreting groups of new employees into existing bargaining units. It did not, and could not, conclude that the employees at each Cooper Smith facility had an “insufficient group identity to function as a separate unit,” Baltimore Sun, 257 F.3d at 427, and that the community of interest between those employees and the employees in the existing Earthgrains bargaining unit was “overwhelming,” Safeway Stores, 256 N.L.R.B. at 918. To reach such a conclusion, the Board would have had to find that the former CooperSmith employees, at each historically nonunion-ized facility in a location geographically distinct from employees in the Earthgrains bargaining unit, could not have a group identity sufficient to form a bargaining unit. See Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 120 (4th Cir.1978). Given its broad discretion to define bargaining units, the Board could not have overcome that barrier. And without satisfying itself that the employees at each separate facility could not have a group identity, the Board could not have accreted the CooperSmith employees to an existing bargaining unit. Moreover, the Board could not have satisfied the second step of its Safewcty Stores accretion standard-that the CooperSmith employees had an \"overwhelming\" community of interest with the Earth-grains employees in the bargaining units. To decide that question, the Board traditionally applies a 12-factor test, considering: (1) similarity in the scale and manner of determining the earnings; (2) similarity in employment benefits, hours of work, and other terms' and conditions of employment; (3) similarity in the kind of work performed; (4) similarity in the qualifications, skills, and training of the employees; (5) frequency of contact or interchange among the employees; (6) geographic proximity; (7) continuity or integration of production processes; (8) common supervision and determination of labor-relations policy; (9) relationship to the administrative organization of the employer; (10) history of collective bargaining; (11) desires of the affected employees; (12) extent of union organization. Lundy Packing, 68 F.3d at 1580. The Board did not conduct this analysis. And if it had conducted the analysis, even the limited record" }, { "docid": "23075720", "title": "", "text": "the rights guaranteed by Section 9(b) of the Act. Whereas, when a claim of accretion is made to an existing unit, a favorable determination forecloses a vote and restricts the employees in the exercise of their basic right to select their bargaining representative. That right is the predominant consideration under Section 7 of the Act and is to be restricted only under ‘compelling conditions.’ See Sunset House, 167 NLRB No. 132; Kinney National Maintenance Services, 177 NLRB No. 53. “In determining whether a particular operation constitutes an accretion or a separate unit, the Board gives weight to a variety of factors, such as integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills, and functions, control over labor relations, collective-bargaining history, and interchangeability of employees. A variety of factors, some militating toward and some against accretion, are usually present so that a balancing of factors is necessary.” Id. 181 NLRB at 90. Ultimately, the Board has very broad discretion in resolving these unit questions, see N. L. R. B. v. Alterman Transport Lines, 5 Cir. 1972, 465 F.2d 950, and it is not our role to render a definitive resolution in this proceeding. In order to affirm a finding of “reasonable cause” it is sufficient that the General Counsel’s reasons for rejecting the accretion be “substantial.” We need not and should not decide if they are “correct.” Applying such standards, we find that there was reasonable cause to believe that the N.L.R.B. would have rejected the Teamsters’ contention that an accretion was appropriate. C. The Unfair Labor Practice Charges Having decided that the District Court could properly find that the Regional Director had reason to believe the Board would not defer to the arbitration award and find an accretion, we must now confront the Union’s primary contention — that regardless of the appropriateness of the unit it is seeking, it cannot be an unfair labor practice for it to obtain and enforce an arbitration award where there is no existing Board ruling contrary to the unit resolution found by the arbitrator. Again, under §" }, { "docid": "21641035", "title": "", "text": "Cir.2001). Specifically, § 7 of the NLRA grants employees the right to choose equally between self organization through representatives “of their own choosing” and the right “to refrain” from any collective bargaining activity. 29 U.S.C. § 157; see also Melbet Jewelry Co., 180 N.L.R.B. 107, 109, 1969 WL 23025 (1969). To protect the employees’ right of self-determination, the Board is given broad discretion to define appropriate collective bargaining units. See 29 U.S.C. § 159(b); Lundy Packing, 68 F.3d at 1579-80. Those units, in turn, vote on union representation, and, if the union wins, the union may bargain collectively with the employer to reach a collective bargaining agreement that will govern the unit for an agreed term. During the term of the collective bargaining agreement, new employees of the company where the bargaining unit exists are routinely accreted into the unit to be bound by the agreement. See, e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996) (describing the union’s entitlement to a presumption of majority status during the term of a collective bargaining agreement). But that routine course of action assumes that the new employees have “little or no separate group identity and thus cannot be considered to be a separate appropriate unit.” Baltimore Sun, 257 F.3d at 427 (citation and internal quotation marks omitted). In contrast, when an entire group of nonunion employees joins a union company, accretion is rare and is reserved only for “cases in which [the Board] could conclude with great certainty, based on the circumstances, that the employees’ rights of self-determination would not be thwarted.” Baltimore Sun, 257 F.3d at 427. Specifically, through its announced standard, the Board rejects accretion unless two prerequisites have been satisfied: (1) the Board must find that the new employees have “an insufficient group identity to function as a separate unit”; and (2) it must find an “overwhelming community of interest,” such that the accreted employees have “interests [that] are so closely aligned with those of the preexisting bargaining unit that the Board can safely assume that the accreted employees would" }, { "docid": "20067687", "title": "", "text": "and conditions of employment” within the meaning of § 8(d) of the Act — of employees within a bargaining unit with which Universal already had a collective bargaining agreement. The company’s duty to recognize the accretion is triggered by the request of the bargaining representative to negotiate. Goodyear Tire & Rubber Co., 195 NLRB 767 (1972). A finding of an accretion by the Board is similar to the Board’s certifying a particular group of employees as an appropriate bargaining unit because in both the Board is using its expertise to determine the most appropriate mix of employees for a particular unit. N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d 785, 794 (10th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 302 (1975); N.L.R.B. v. Security-Columbian Banknote Co., 541 F.2d 135, 140-41 (3d Cir. 1976). And, just as when the Board certifies a unit, the Board’s finding of an accretion is a matter which is generally committed to its discretion. N.L.R.B. v. R. L. Sweet Lumber Co., supra; Lammert Indus. v. N.L.R.B., supra; N.L.R.B. v. Security-Columbian Banknote Co., supra. Thus, its finding “should not be set aside unless the reviewing court is convinced that the Board has acted in an arbitrary and capricious manner.” N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d at 794. In making its determination the Board must closely analyze the circumstances of the workers to determine whether the new and old employees truly share a “community of interest.” To do this several factors are scrutinized. These are: (1) similarity of working conditions; (2) job classi fication; (3) skills and functions; (4) similarity of products; (5) interchangeability of employees; (6) geographical proximity; (7) centralization of managerial control; Lammert Indus. v. N.L.R.B., 578 F.2d at 1225; (8) functional integration of the business; (9) collective bargaining history. N.L.R.B. v. R. L. Sweet Lumber Co., 515 F.2d 785. See also Peter Kiewit Sons’ Co., 231 NLRB 76 (1977). In determining whether a group of employees represents an accretion to an existing unit the Board must consider unique and complex sets of facts in light of the" }, { "docid": "12018717", "title": "", "text": "* In these situations, the Board will examine the entire picture before permitting the new employees to be swallowed up by the bargaining representative of the employer’s other employees without expressing their wishes in the matter.” N. L. R. B. v. Food Employers Council, 399 F.2d 501 (9 Cir., 1968). Bearing in mind the above principles, we are in accord that the present action does not come within the accretion doctrine. Both unions, Retail Clerks and Amalgamated Clothing Workers, were performing under similar collective bargaining agreements with the Company in that each agreement provided for the expansion of its union to encompass future employed workers. However, the Retail Clerks Union urges that the new employees of the Company should be absorbed within its labor organization without self-initiative on their part. It is the Amalgamated Clothing Workers Union’s contention that an election should be conducted without reference to the possibility that the new employees would come within the accretion provision of its labor contract. To determine the applicability of the accretion doctrine, the Board considers the history of collective bargaining; the extent of centralized and local managerial control over labor relations and store policies; the geographical proximity of the stores to each other; the frequency of the interchange of employees between the stores, and whether any union is seeking a more limited or broader unit than the unit proposed. Great Atlantic and Pacific Tea Co., 140 N.L.R.B. 1011 (1963). In the case of Pullman Industries, Inc., 159 N.L.R.B. 580 (1966), the Board established the additional consideration that the accreted unit should not numerically overshadow the pre-existing unit. In reviewing the facts of this case within the framework of these criteria, the Board was justified in making the determination accretion was improper. We find no irregularity in the Board’s designation of the new store as an appropriate bargaining unit. Through the teachings of N. L. R. B. v. Sun Drug Co., 359 F.2d 408 (3 Cir. 1966), it is acknowledged that a single store under the proper circumstances is a valid bargaining unit. The cases cited in Sun Drug Co. supra, demonstrate" }, { "docid": "23075718", "title": "", "text": "Sheraton-Kauai Corp. v. N. L. R. B., 9 Cir. 1970, 429 F.2d 1352. In the instant case it is possible that the broader integrated unit sought by the Teamsters might be found appropriate. It is also quite possible that the unit found appropriate might exclude the Florida operation. There are many reasons militating against the accretion including, inter alia, the totally different employer-worker relationship practiced by Pilot in Florida, the inability of the Teamsters to organize the Pilot workers in Florida, the lack of significant interchange of personnel between Florida and the rest of the system, and the lack of geographical proximity with the rest of the Pilot system. It is certainly not frivolous for the General Counsel to believe an accretion might not be found by the Board. The Board has taken an extremely narrow view of permissible contractual accretions. In Pix Manufacturing Co., 181 NLRB 88 (1970), the Teamsters were defending unfair labor practice charges for pursuing an arbitration award granting a contractual accretion of a new unit. The Board rejected the Teamsters’ arguments and made the following statements which are indicative of the Board’s attitude towards arbitral awards finding accretion: “Even assuming that the’ arbitration proceeding herein was fair and regular and all parties agreed to be bound, I conclude there is no merit in Teamsters position that the Board must honor the award without considering whether it clearly reflected the use of and was consonant with Board standards in determining whether Pix’s production and maintenance employees accreted to the unit described in E.I.’s contract with Teamsters. Thus, the resolution of this question could determine whether or not Respondent unlawfully recognized and bargained with Teamsters as the exclusive bargaining representative of its production and maintenance employees. “Although the criteria used in resolving unit and accretion issues are quite similar, the Board has been more restrictive in their application to accretions. This is so because the resolution of competing claims for a single unit or a multiplant unit merely determines in which unit the employees will be permitted to vote to insure them the fullest freedom in exercising" }, { "docid": "21641036", "title": "", "text": "during the term of a collective bargaining agreement). But that routine course of action assumes that the new employees have “little or no separate group identity and thus cannot be considered to be a separate appropriate unit.” Baltimore Sun, 257 F.3d at 427 (citation and internal quotation marks omitted). In contrast, when an entire group of nonunion employees joins a union company, accretion is rare and is reserved only for “cases in which [the Board] could conclude with great certainty, based on the circumstances, that the employees’ rights of self-determination would not be thwarted.” Baltimore Sun, 257 F.3d at 427. Specifically, through its announced standard, the Board rejects accretion unless two prerequisites have been satisfied: (1) the Board must find that the new employees have “an insufficient group identity to function as a separate unit”; and (2) it must find an “overwhelming community of interest,” such that the accreted employees have “interests [that] are so closely aligned with those of the preexisting bargaining unit that the Board can safely assume that the accreted employees would opt into the unit if given the opportunity.” Baltimore Sun, 257 F.3d at 427 (citing Safeway Stores, 256 N.L.R.B. 918, 918, 1981 WL 20532 (1981)). When a company acquires new employees through the acquisition of an entire facility, the Board has presumptively treated the employees at the new facility as a separate bargaining unit. See, e.g., ATS Acquisition Corp., 321 N.L.R.B. 712, 712, 1996 WL 395871 (1996); Gitano Group, Inc., 308 N.L.R.B. 1172, 1175, 1992 WL 281657 (1992). And the Board generally does not compel the employees .at the new facility to be included in a pre-existing bargaining unit “without allowing those employees the opportunity of expressing their preference in a secret election.” Archer Daniels Midland Co., 333 N.L.R.B. No. 81, 2001 WL 303760, at *6 (2001) (quoting Melbet Jewelry, 180 N.L.R.B. at 110); Kroger Co., 155 N.L.R.B. 546, 548-49, 1965 WL 15824 (1965) (requiring new elections when two plants “merge into an entirely new operation”); General Extrusion Co., 121 N.L.R.B. 1165, 1958 WL 13565 (1958) (refusing to apply the contract bar doctrine where “changes" }, { "docid": "23075726", "title": "", "text": "petition, and thus have given all employees at all locations an equal voice in the initial representation decision, it would not ‘under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit with out allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them.’ Melbet Jewelry Co., 180 N.L.R.B. No. 24 (1969). See also Super Valu Stores, Inc., 177 N.L.R.B. No. 63 (1969); Warehouse Markets, Inc., 174 N.L.R.B. No. 70 (1969). . . . “. . . The Appleton opinion' suggests- that the issue is controlled by the existence of an accretion clause in a lawful collective bargaining contract. But neither the Board’s discretion under section 9(b), nor the employees’ right of self-determination under section 7, can be limited by contract between a union and employer. NLRB v. Sunset House, supra, 415 F. 2d at 547, 548; Welch Scientific Co. v. NLRB, 340 F.2d 199, 202-203 (2d Cir. 1965). Cf. Local 919, Retail Clerks International Association, supra, 416 F.2d at 1118, And the fact that section 7 guarantees employees the right to reject union representation entirely precludes the Board from giving controlling weight to the Appleton court’s concern that nonenforcement of an accretion clause would deprive employees at the new location of union representation during the period of time required to prepare for and hold a representation election.” Id., 429 F.2d at 1355-1357 (footnote omitted). See also International Ladies Garment Worker’s Union v. N. L. R. B., 1961, 366 U.S. 731, 81 S.Ct. 1603, 6 L. Ed.2d 762 (Bernhard Altman); Southern Conference of Teamsters v. Red Ball Motor Freight, Inc., 5 Cir. 1967, 374 F. 2d 932. In N. L. R. B. v. Driver’s Local Union No. 639, 1960. 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710 (Curtis Brothers), the Supreme Court rejected a § 8(b)(1)(A) charge where the union was engaged in peaceful picketing aimed at recognition. Here, where the Union’s activities went beyond picketing and involved" }, { "docid": "9603438", "title": "", "text": "office, and with a minimum of local independent control. Store layout, merchandising, and advertising are coordinated with Sunset’s mail order business. Every time the company sends out a new catalog, each store’s merchandise displays are completely revised to match the pictures in the catalog. Prices are the same in all of the stores. Banking and insurance coverage is also the same for all stores. The main office determines inventory levels for each store. There is centralized control over labor relations, with the central office formulating uniform personnel policies. Yet, contrary to the contention of the company,' the Trial Examiner found that the local store manager in San Francisco has the power to hire new employees, subject at most to ratification by the main office. There are uniform employment applications and employee training procedures. Wages, hours, and working conditions are identical throughout the system. Although given the opportunity, there has been no interchange of employees between the San Francisco and other stores. Before the Board, the company argued that the standard store design and operation, the history of multi-store bargaining, and the certification of the Los Angeles-San Diego unit required a finding that the new store employees were an “accretion” to the existing bargaining unit. An “accretion” occurs when new employees are added to an already existing unit. “The question of whether a group of employees represents an ‘accretion’ to an existing unit, so that the group is governed by the larger unit’s choice of bargaining representatives, is similar to the issue of a particular unit’s ‘appropriateness’ for purposes of bargaining.” N.L.R.B. v. Food Employers Council, Inc., 399 F.2d 501, 502 (CA 9, 1968). On the basis of the great geographical distance between the San Francisco store and the other stores, the lack of any employee interchange, and the local manager’s hiring and firing power, the Trial Examiner and Board rejected the contention that the new employees were an accretion to the old bargaining unit. The Trial Examiner and Board reasoned that employees are usually allowed to select their own bargaining representatives and that the accretion doctrine should be applied restrictively" }, { "docid": "23075719", "title": "", "text": "arguments and made the following statements which are indicative of the Board’s attitude towards arbitral awards finding accretion: “Even assuming that the’ arbitration proceeding herein was fair and regular and all parties agreed to be bound, I conclude there is no merit in Teamsters position that the Board must honor the award without considering whether it clearly reflected the use of and was consonant with Board standards in determining whether Pix’s production and maintenance employees accreted to the unit described in E.I.’s contract with Teamsters. Thus, the resolution of this question could determine whether or not Respondent unlawfully recognized and bargained with Teamsters as the exclusive bargaining representative of its production and maintenance employees. “Although the criteria used in resolving unit and accretion issues are quite similar, the Board has been more restrictive in their application to accretions. This is so because the resolution of competing claims for a single unit or a multiplant unit merely determines in which unit the employees will be permitted to vote to insure them the fullest freedom in exercising the rights guaranteed by Section 9(b) of the Act. Whereas, when a claim of accretion is made to an existing unit, a favorable determination forecloses a vote and restricts the employees in the exercise of their basic right to select their bargaining representative. That right is the predominant consideration under Section 7 of the Act and is to be restricted only under ‘compelling conditions.’ See Sunset House, 167 NLRB No. 132; Kinney National Maintenance Services, 177 NLRB No. 53. “In determining whether a particular operation constitutes an accretion or a separate unit, the Board gives weight to a variety of factors, such as integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills, and functions, control over labor relations, collective-bargaining history, and interchangeability of employees. A variety of factors, some militating toward and some against accretion, are usually present so that a balancing of factors is necessary.” Id. 181 NLRB at 90. Ultimately, the Board has very broad discretion in resolving these unit questions, see N. L. R. B." }, { "docid": "23075723", "title": "", "text": "permits an accretion where majority status is not demonstrated at the new unit; however, this is the exception rather than the rule, and in recent years the Board has been extremely protective of the employees’ free choice in those situations where the accreted unit could stand on its own. The Board has not hesitated to find § 8(b)(1)(A) violations in circumstances where the Union was attempting to implement an accretion of a new unit when such accretion did not meet Board standards. In Shop-Rite, 170 NLRB 446 (1968), the Board found that the Union violated § 8(b) (1) (A) by seeking enforcement of a contractual accretion. The Board concluded: “We find, therefore, that the Respondent Company and the Respondent Union, by enforcing their agreement with regard to [the new store in the unit] at a time when the Respondent Union was not the freely selected majority representative of those employees unlawfully infringed upon the statutory right of such employees to express a free choice as to their bargaining representative and accordingly . . the Union violated § 8(b)(1)(A) . . .” Similarly, in Sunset House, 167 NLRB 870, 875, enforced, 9 Cir. 1969, 415 F.2d 545, the Board rejected the Union’s accretion theory and stated that “by obtaining recognition and by executing and maintaining a contract containing union security provisions . . . the Union has engaged in unfair labor practices within § 8(b)(1)(A).” See also Pix Manufacturing Co., supra; Melbet Jewelry Co., supra. In a recent case with a remarkably similar procedural posture regarding the unfair labor practices, the Ninth Circuit enforced a Board order finding § 8(b)(1)(A) violations against a union that was seeking a contractual accretion of a new unit where there was no contrary Board ruling at the time the accretion was effected. Sheraton-Kauai Corp. v. N. L. R. B., supra. In that case the Board was petitioning the Court for enforcement of its order, so the Court not only had to decide that the Board theory was substantial, it also had to find that it was correct. The Court enforced the Board’s order, rejected the" } ]

[ { "docid": "22126012", "title": "", "text": "and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. Secretary v. California Stevedore and Ballast Co., OSHRC Docket No. 72 (June 16, 1972) (employers entitled to rely on standard’s clear language, uncolored by additional subjective criteria). A regulation should be construed to give effect to the natural and plain meaning of its words. Johnson v. Udall, C.D.Cal., 1968, 292 F.Supp. 738, 750. See Commissioner v. Wodehouse, 1949, 337 U.S. 369, 69 S.Ct. 1120, 93 L. Ed. 1419, reh. denied, 338 U.S. 840, 70 S.Ct. 31, 94 L.Ed 514 (tax regulation); M. Kraus & Bros., Inc. v. United States, 1946, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (criminal prosecution for violation of maximum price regulation). If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express. Brennan v. Occupational Safety and Health Review Commission, 5 Cir., 1973, supra; Meehan v. Macy, 1968, 129 U.S.App.D.C. 217, 392 F.2d 822; 4 Davis, Administrative Law Treatise § 30.12. Cf. Cole v. Young, 1956, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (ambiguity in Executive Order is fault of government and is resolved against it). We recognize that OSHA was enacted by Congress for the purpose stated by the respondents. Nonetheless, the Secretary as enforcer of the Act has the responsibility to state with ascertainable certainty what is meant by the standards he has promulgated. Because the Secretary has failed in this regulation to so state, we must conclude that § 1926.500(d)(1) does not apply to open-sided roofs. The Act grants the Secretary — not OSHRECOM or the courts — the means to amend the regulation if he so desires. Respondents OSHRECOM and the Secretary further argue that our conclusion presents the ludicrous anomaly of guarding employees working on open-sided floors while leaving unprotected those employees working on open-sided roofs, which are always at greater" } ]

[ { "docid": "58297", "title": "", "text": "based on the consideration of relevant factors, whether there is a clear error of judgment, and whether there is a rational basis for the conclusions approved by the administrative body.... It is not required that the interpretation be the only reasonable choice. Energy Consumers and Producers’ [sic] Ass’n v. DOE, 632 F.2d 129 (Em.App. 1980). Memorandum Opinion and Order of Judge Eu-banks, RA at 824-25. . The FEA protests that to allow Tenneco to exclude oil consumed on-site from the BPCL would be to negate the intended effect of the regulations. Regulatory history and intent are always relevant in interpreting ambiguous language, and a literal interpretation may be avoided where necessary to effectuate the regulatory purpose. Commissioner of Internal Revenue v. Brown, supra. However, the language of the regulations must reasonably bear the intended meaning. A court cannot put its imprimatur on a regulation that was intended but never enacted. Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645 (5th Cir. 1976). If Tenneco’s “plain meaning” interpretation of the price control regulations is incorrect, Tenneco may be exposed to civil or criminal penalties for its alleged overcharges. 10 C.F.R. § 205.202. As this court stated in Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n. 20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), “[fjundamental fairness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application.... One can have knowledge of a legal duty imposed by regulations only when there is adequate notice.” 613 F.2d at 303. . Diamond Roofing v. Occupational S. & H. Rev. Com’n, 528 F.2d 645 (5th Cir. 1976), involved citations of the Secretary of Labor for violations of safety regulations. Contrast Shell Oil Company v. Federal Power Commission, 491 F.2d 82 (5th Cir. 1974), where the same court in a more comparable case with far-reaching consequences upheld the interpretation of the Commission, declaring that while a court will accord less deference to an interpretative rule than to a legislative rule, an agency’s" }, { "docid": "17668349", "title": "", "text": "conceded that West Coast was correct and recomputed the BPCL according to the amounts of oil actually sold. Whatever the reason for Tenneco’s original accounting error, later corrected, we do not believe that this isolated example is sufficient to alter the well-established meaning which law and custom have attributed to the words employed by the regulations. The FEA protests that to allow Tenneco to exclude oil consumed on-site from the BPCL would be to negate the intended effect of the regulations. Regulatory history and intent are always relevant in interpreting ambiguous language, and a literal interpretation may be avoided where necessary to effectuate the regulatory purpose. Commissioner of Internal Revenue v. Brown, supra. However, the language of the regulations must reasonably bear the intended meaning. A court cannot put its imprimatur on a regulation that was intended but never enacted. Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645 (5th Cir. 1976). If Tenneco’s “plain meaning” interpretation of the price control regulations is incorrect, Tenneco may be exposed to civil or criminal penalties for its alleged overcharges. 10 C.F.R. § 205.202. As this court stated in Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n. 20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), “[fundamental fairness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application. . One can have knowledge of a legal duty imposed by regulations only when there is adequate notice.” Assuming for the sake of argument that the oil price regulations could be stretched to accommodate the FEA’s position, we should be hesitant to stray from a plain meaning interpretation when the history and intended meaning of the regulations are so uncertain. The interpretations offered by both the FEA and Tenneco are equally tenable in light of the original regulatory goals. When the FEA’s predecessor agency, the Cost of Living Council (.COLC), first proposed the two-tier pricing system for domestic oil, the amount of old oil was to be calculated by comparing the" }, { "docid": "58298", "title": "", "text": "is incorrect, Tenneco may be exposed to civil or criminal penalties for its alleged overcharges. 10 C.F.R. § 205.202. As this court stated in Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n. 20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), “[fjundamental fairness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application.... One can have knowledge of a legal duty imposed by regulations only when there is adequate notice.” 613 F.2d at 303. . Diamond Roofing v. Occupational S. & H. Rev. Com’n, 528 F.2d 645 (5th Cir. 1976), involved citations of the Secretary of Labor for violations of safety regulations. Contrast Shell Oil Company v. Federal Power Commission, 491 F.2d 82 (5th Cir. 1974), where the same court in a more comparable case with far-reaching consequences upheld the interpretation of the Commission, declaring that while a court will accord less deference to an interpretative rule than to a legislative rule, an agency’s interpretation of its own regulations merits deference and that where its regulation was ambiguous and subject to two different interpretations, the court would not overrule its choice of one. Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.1977), dealt with essentials to establish a “willful overcharge” construed by this court in the criminal sense, and the statement which Tenneco ascribes to Longview was supported in Longview, 554 F.2d at 1014 n.20, by the citation of Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952), a criminal case involving the validity of an indictment. Even there the Supreme Court refused to sustain the quashing of the indictment on the claim that the agency regulation was unduly vague. The Court called attention to the fact that the statute punished only those knowingly violating the regulation and observed that “[tjhis requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so" }, { "docid": "16535875", "title": "", "text": "whether or not treble damages and attorney’s fees should be awarded for later disposition. Record at 01287. . The Order entered on May 1, 1981, provided that interest on the amount of judgment would accrue at the rate of 6 percent from October 24, 1974 until the date of fínal judgment in the action. The same order provided for revision of the damage award after disposition of the remaining issues if necessary. Record at 01287. . Memorandum of Decision, January 12, 1982. Record at 01678-79. . This court has previously noted the obvious complexity and “frequent correction, modification, change and clarifying rulings” of the applicable regulations in this case. Longview Refining Co. v. Shore, 554 F.2d 1006, 1023, 1024-1062 (Em.App.1977), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). And, we have repeatedly warned that “fundamental fairness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application.” Id. at 1014, n. 20; Standard Oil Co. v. Department of Energy, 596 F.2d 1029, 1065, n. 87 (Em.App.1978), reh. denied, 1979, citing Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). At oral argument, counsel for both parties also voiced their trouble with these regulations. . See, Eastern’s Brief at 40-45. Eastern’s argument appears to be that because a price of 11.55 cents per gallon appeared on an ARCO internal computer printout in 1975, and that this printout was later used as data by ARCO in recomputing recoveries in response to a Notice of Probable Violation (NOPV), ARCO therefore had previously made the determination that Eastern’s base price was 11.55 cents. The record reflects that Mr. Richard Morse, in-house counsel for ARCO, wrote Mr. George Immoor, manager of fuel contracts and services for Eastern, on February 15, 1974 and plainly stated that Eastern’s base price was 12.89 cents per gallon. See, Plaintiffs Trial Exhibit “PTE” 37. . The original supply contracts between ARCO and Eastern were entered into in April, 1969. These contracts expired by their own terms" }, { "docid": "9801053", "title": "", "text": "if they don’t, to allow extrinsic aids to resolve any ambiguity. Moreover, the court is of the opinion that since the term used is used in a regulatory framework it must be viewed from an industry standnoint. The court reaches this conclusion because the term has no relevant meaning outside the industry and the regulations subject only those within the industry to their control. In investigating the plain meaning of “wells that produced crude oil” the court has examined the transcripts of two prior hearings held before this court on February 26, 1979 and before Judge Robert M. Hill on April 7, 1978, which the parties have made part of the record in this case. Additionally, the court has reviewed other materials submitted to the court by the parties in support of their motions. After a careful and thorough reading of these transcripts and the other materials the court has reached the conclusion that the regulatory term has a plain meaning and that the plain meaning would include the counting of injection wells. At several points throughout the transcripts the petroleum experts examined made it clear that injection wells are wells that produce crude oil and that injection wells are normally counted as such. (April 7, 1978 Transcript pp. 13-16, 35, 63 — 65; February 26, 1979 Transcript pp. 72-73). While the court is aware that the Department of Energy would argue a contrary reading the court finds that the portions of the transcripts that the Department directs the court to examine not persuasive. The Department of Energy seeks to persuade the court that the dichotomy drawn between “producing wells” and “injection wells” in the transcripts is the same one that exists between “wells that produced crude oil” and “injection wells.” The court does not find that argument accurate and instead is of the opinion that the terms “produc mg wells” and “wells that produced crude oil” cannot be equated with each other. The general context of the transcripts leads the court to this conclusion as well as specific testimony within the transcripts that establishes that a hydraulic relationship exists" }, { "docid": "9801085", "title": "", "text": "Energy Reserves Group, Inc. v. DOE, 589 F.2d 1082, at 1098-1099 (Em.App.1978), clarified in Duncan v. Theis, 613 F.2d 305 (Em.App.1979). Remaining Issues The record in this case is probably sufficient to permit consideration of the propriety of the denial by the District Court of the motion of appellant DOE for summary judgment or in the alternative to dismiss (J.A. 137). The District Court, however, did not pass on the remaining issues in its memorandum of findings of fact and conclusions of law. And the remaining issues were not briefed and argued in this appeal. Therefore they will not be decided now. Without suggesting that there is any merit in appellees’ remaining contentions, the action will be remanded for further proceedings consistent with this opinion. Conclusion For the foregoing reasons, the judgment of the District Court, including but not limited to the grant of injunctive and declaratory relief, is reversed and the action is remanded for further proceedings consistent with this opinion. In No. 5-53 appellants filed a premature notice of appeal while appellants’ timely motion under Rule 59, F.R.Civ.P., for reconsideration (to alter and amend the judgment) was pending. It is hereby ORDERED that this premature appeal be, and it is hereby, dismissed. . Note 20 of Longview Refining Co. v. Shore, 554 F.2d 1006 at 1014 (Em.App.1977), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977) cited by the District Court was explained on other issues in Dyke v. Gulf Oil Corp., 601 F.2d 557 (Em.App.1979). . The exemption was reenacted in Section 4(e)(2)(A) of the Emergency Petroleum Allocation Act of 1973, Í5 U.S.C. §§ 751 et seq., repealed for a brief time in 1975 by Section 401(b)(1) of the Energy Policy and Conservation Act, Pub.L. 94-163, and later reinstated by Section 121 of the Federal Energy Administration Amendments of 1976, Pub.L. 94-385, 15 U.S.C. § 757(i). See history in Energy Reserves Group, Inc. v. DOE, 589 F.2d 1082, at 1087-1091 (Em.App.1978), clarified in Duncan v. Theis, 613 F.2d 305 (Em.App.1979). . The Marginal Property Rule was later published with corrections that are immaterial here" }, { "docid": "9801056", "title": "", "text": "in allocating royalties on leased public lands. See Marathon Oil Co. v. Kleppe, 556 F.2d 982, 985 (10th Cir. 1977). From the foregoing it is clear to the court that producers subject to regulation from these agencies would normally believe that the plain meaning of the words “wells that produced crude oil” would include injection wells. The court is aware that the conclusion it reaches today is contrary to the intent of the Department of Energy expressed in the Preamble to the rule and published in the Federal Register. This regulatory history is relevant but since the court is of the opinion that “wells that produced crude oil” has a plain or unambiguous meaning the court chooses to disregard it in favor of the plain meaning. This decision is made on a basis that language of a regulation must reasonably bear its intended meaning and a court may not sanction a regulation that was intended but never enacted. Tenneco Oil Co. v. Federal Energy Administration, 613 F.2d 298, 303 (Em.App.1979); Diamond Roofing v. Occupational Safety & Health Review Commission, 528 F.2d 645, 649 (5th Cir. 1976). Moreover, fundamental fairness requires that when one may become subject to civil or criminal sanctions the language creating that possibility must adequately express it. Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n.20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98. Here, the Department of Energy has failed to adequately express their intention and therefore the plain meaning of the words must control. Accordingly the court declares and construes that injection wells are included within the term “wells that produced crude oil.” The plaintiffs’ motion for summary judgment is granted and the defendants’ motions for summary judgment and to dismiss are denied. A judgment will be entered in accordance with the above and the Department of Energy is hereby enjoined from excluding the counting of injection wells in the application of the Marginal Property Rule to the plaintiffs’ property. (Emphasis and footnote added.) The Contentions of the Parties on Appeal On appeal appellants assert the following contentions: A. The" }, { "docid": "9801048", "title": "", "text": "be described as wells through which substances are forced into the subsurface. The purpose of this injection procedure is to increase pressure in subterranean petroleum reservoirs forcing more crude oil to the surface through recovery wells. Before the court can consider whether it may construe the disputed terms, the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted must be considered. The Department of Energy asks that the complaint be dismissed because, they contend, it impermissibly asks the court to rewrite the Marginal Property Rule to include the counting of injection wells. In support of this argument the Department of Energy states that a court may not rewrite an administrative regulation nor may it invalidate one part and allow the remaining parts to stand. While the court is in agreement with this statement of the law, it does not find it applicable in this case. The court does not perceive that the plaintiffs seek to have any portion of the Marginal Property Rule struck down or expanded. Rather, it appears to the court that they only seek to have a portion of the rule defined in order to avoid possible civil and criminal sanctions. Since the terms they seek to have defined are not defined within the body of the regulation, this court does not find that it is being asked to impermissibly rewrite or strike down any portion of the regulation. Accordingly, the motion to dismiss is denied. Both parties have also filed motions for summary judgment and while the parties have differed in their approach to resolution of this case upon summary judgment they basically argue the same issue. That issue being a definition of “wells that produced crude oil.” The plaintiffs go directly to the dispute and simply ask the court to construe the term and give the regulation its plain meaning. On the other hand, the Department of Energy has colored the question before the court as one of procedural and substantive validity. Nevertheless, the court is of the opinion that the proper resolution of this case requires the" }, { "docid": "21902861", "title": "", "text": "at 1346, (emphasizing that this court did not invalidate the agency’s interpretation in Standard Oil simply because the underlying regulatory scheme could be construed in more than one way); UPG, Inc. v. Edwards, 647 F.2d 147 at 157 nn.24 & 26 (Em.App.1981); Mountain Fuel Supply Co. v. DOE, 656 F.2d 690 (Em.App. 1981). . 596 F.2d at 1063-65 (discussing the retroactivity tests of Securities Comm’n v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), and Retail, Wholesale and Department Store U. v. N.L.R.B., 466 F.2d 380, 390 (D.C.Cir.1972)). See also Phillips, 449 F.Supp. at 797-98 (applying the same traditional tests rather than basing its decision on any “compelled construction” doctrine). See our discussion infra of retroactivity. . Tenneco Oil Co. v. Federal Energy Administration, 613 F.2d 298 (Em.App. 1979); Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). . UPG, 647 F.2d at 157. . “Interpretative rules simply state what the statute or regulation has always meant in the opinion of the administrative agency issuing the interpretative rule.” Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082, 1100 (Em.App.1978). . Cf. Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82 (1978), where the Supreme Court precluded the IRS from retroactively applying a rule requiring employers to withhold certain taxes; during the relevant time, no regulation and no ruling required withholding and no employer could reasonably have suspected that withholding was required. . Judge Duniway expressed a similar view in Sauder, 648 F.2d at 1347. Closely related to the above argument is Sauder’s contention that the agency’s insistence on a formal unitization agreement is a retroactive requirement and that it would be inappropriate to apply the requirement to his case under the factors stated in Retail, Wholesale and Department Store Union v. NLRB, D.C.Cir., 1972, 466 F.2d 380, 390, and repeated by us in Standard Oil, supra, 596 F.2d at 1963-5. However, we conclude that the agency’s interpretation is not retroactive. It does" }, { "docid": "9801050", "title": "", "text": "court to construe the words “wells that produced crude oil” and that after that determination is made, summary judgment will be proper. The Department of Energy contends that it is clear in the body of the regulation that they did not intend to count injection wells when enumerating “wells that produced crude oil.” In support of this position the Department of Energy con tends that the plaintiffs have not even attempted to dispute the facts that their present position has been the definitive agency position since Ruling 1974-29, a 1974 Department of Energy regulation dealing with stripper wells. Moreover, the Department of Energy states that it was abundantly clear in the Preamble to the Marginal Property Rule published in the Federal Register that the Department of Energy did not intend to include injection wells as “wells that produced crude oil.” The Department of Energy has failed, however, to show this court precisely where in the regulation that one could turn, to know their intended meaning. Contending that they have long held their present position and pointing to the Preamble, which does not appear in the Code of Federal Regulations, does not indicate to this court that an individual subject to regulations could operate free from fear of civil and criminal sanctions if he were to be guided only by the rules appearing in the Code of Federal Regulations. Further, it appears to the court that absent the definition an individual could violate the intended but unexpressed terms of the regulation. Such an effect cannot be condoned because agency regulations must be reasonably apprehensible to individuals subject to regulation. Tenneco v. Federal Energy Administration, 613 F.2d 298, 302 (Em.App.1979). The determination that the Department of Energy has not sufficiently expressed itself does not resolve the issue before the court. The question is still one of construction and in this regard the court has considered whether the term is ambiguous. Both parties have asserted that the term is unambiguous and that the court should give it its plain meaning. (Footnote Alternatively, the Department of Energy has asserted that the term is ambiguous." }, { "docid": "58296", "title": "", "text": "(Em.App. 1978); Jicariila Apache Tribe v. Federal Energy Regulatory Commission, 578 F.2d 289 (10th Cir. 1978). If the interpretation is not based on expertise in a particular field, however, but is, instead, based on general common law principles, great deference is not required. Standard Oil Company v. Department of Energy, supra. Deference is not a hard and fast or absolute rule. The weight to be given an interpretation depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and other persuasive factors. Skidmore v. Swin & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Standard Oil Company v. Department of Energy, supra. The deference rule does not control if the interpretation is plainly erroneous or inconsistent with the regulations. Standard Oil Company of Ohio v. Federal Energy Administration, 612 F.2d 1291 (Em.App. 1979). The standard of review for agency action alleged to be arbitrary and capricious is not simply whether there exists a rational basis, but is, instead, whether the decision is based on the consideration of relevant factors, whether there is a clear error of judgment, and whether there is a rational basis for the conclusions approved by the administrative body.... It is not required that the interpretation be the only reasonable choice. Energy Consumers and Producers’ [sic] Ass’n v. DOE, 632 F.2d 129 (Em.App. 1980). Memorandum Opinion and Order of Judge Eu-banks, RA at 824-25. . The FEA protests that to allow Tenneco to exclude oil consumed on-site from the BPCL would be to negate the intended effect of the regulations. Regulatory history and intent are always relevant in interpreting ambiguous language, and a literal interpretation may be avoided where necessary to effectuate the regulatory purpose. Commissioner of Internal Revenue v. Brown, supra. However, the language of the regulations must reasonably bear the intended meaning. A court cannot put its imprimatur on a regulation that was intended but never enacted. Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645 (5th Cir. 1976). If Tenneco’s “plain meaning” interpretation of the price control regulations" }, { "docid": "9801055", "title": "", "text": "between injection and recovery wells and with the absence of one or the other there would be no production in a secondary recovery unit. This testimony evidences the clear interdependence of the wells upon each other in order to produce crude oil. Moreover, the court has considered the treatment given injection wells by other energy regulatory bodies. In examining what other regulatory bodies have done the court is cognizant that their interpretation would not be binding upon the Department of Energy in promulgating its rules, but the court does believe that other agency and commission interpretations would be illustrative of industry usage. The Texas Railroad Commission appears to consider injection wells as wells that produce crude oil by allowing the counting of injection wells in the determination of production allowables. Similarly the Commission of Conservation of Louisiana and the Oil Conservation Commission of New Mexico provide for the counting of injection wells in calculating allowables. Further, the United States Department of Interior has recognized the counting of injection wells as wells that produce crude oil in allocating royalties on leased public lands. See Marathon Oil Co. v. Kleppe, 556 F.2d 982, 985 (10th Cir. 1977). From the foregoing it is clear to the court that producers subject to regulation from these agencies would normally believe that the plain meaning of the words “wells that produced crude oil” would include injection wells. The court is aware that the conclusion it reaches today is contrary to the intent of the Department of Energy expressed in the Preamble to the rule and published in the Federal Register. This regulatory history is relevant but since the court is of the opinion that “wells that produced crude oil” has a plain or unambiguous meaning the court chooses to disregard it in favor of the plain meaning. This decision is made on a basis that language of a regulation must reasonably bear its intended meaning and a court may not sanction a regulation that was intended but never enacted. Tenneco Oil Co. v. Federal Energy Administration, 613 F.2d 298, 303 (Em.App.1979); Diamond Roofing v. Occupational Safety" }, { "docid": "9801051", "title": "", "text": "pointing to the Preamble, which does not appear in the Code of Federal Regulations, does not indicate to this court that an individual subject to regulations could operate free from fear of civil and criminal sanctions if he were to be guided only by the rules appearing in the Code of Federal Regulations. Further, it appears to the court that absent the definition an individual could violate the intended but unexpressed terms of the regulation. Such an effect cannot be condoned because agency regulations must be reasonably apprehensible to individuals subject to regulation. Tenneco v. Federal Energy Administration, 613 F.2d 298, 302 (Em.App.1979). The determination that the Department of Energy has not sufficiently expressed itself does not resolve the issue before the court. The question is still one of construction and in this regard the court has considered whether the term is ambiguous. Both parties have asserted that the term is unambiguous and that the court should give it its plain meaning. (Footnote Alternatively, the Department of Energy has asserted that the term is ambiguous. The court understands the Department to take this position in the event the court should rule adversely to it. The reason for this assertion is because they would like the court to consider the regulation’s history in construing the regulation if it is ambiguous. How the court could consider this evidence only after it has ruled, however, was not indicated to the court.) Unfortunately, the parties disagree regarding that plain meaning. In the eyes of the court this difference of opinion raises a separate question whether the two parties claiming differing meanings to the same word can create ambiguity themselves or whether the words of the regulation itself must reflect the ambiguity. The court is mindful, however, that parties should not be allowed to refer to extrinsic aids in order to create ambiguity but only to resolve it. 2A Sands, Statutes and Statutory Construction § 46.04 (3d ed. 1973). Accordingly, it is the duty of this court to determine first if the words “wells that produced crude oil” have a plain meaning and then, only" }, { "docid": "17668350", "title": "", "text": "penalties for its alleged overcharges. 10 C.F.R. § 205.202. As this court stated in Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n. 20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), “[fundamental fairness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application. . One can have knowledge of a legal duty imposed by regulations only when there is adequate notice.” Assuming for the sake of argument that the oil price regulations could be stretched to accommodate the FEA’s position, we should be hesitant to stray from a plain meaning interpretation when the history and intended meaning of the regulations are so uncertain. The interpretations offered by both the FEA and Tenneco are equally tenable in light of the original regulatory goals. When the FEA’s predecessor agency, the Cost of Living Council (.COLC), first proposed the two-tier pricing system for domestic oil, the amount of old oil was to be calculated by comparing the amount of oil “produced” from that property in the corresponding month of 1972. Hence, the BPCL was determined by the amount of total production without regard to the amount of oil actually sold. The final regulations adopted by the Council in August 1973 contained a revised definition of new oil which was based on the increase in the amount of oil “produced and sold.” The FEA theorizes that the only purpose of the addition of the words “and sold” is to fix the month of measurement of a property’s BPCL. In support of this theory, the FEA cites an interpretation adopted by the COLC shortly after the promulgation of the regulations. Phase IV Questions and Answers No. 15, reads as follows: Q. Is “base production control level” for domestic crude petroleum under Section 150.354, measured by the amount produced or the amount sold? A producer sells his crude petroleum only when the field tanks are full, and often a tank sold in one month will contain quantities of crude petroleum produced in a prior month." }, { "docid": "21902860", "title": "", "text": ". [I]t is undisputed that during the relevant period the only public pronouncements were made by officials of the Office of Compliance and the FEA auditors and were contrary to the interpretation set forth in the February 1, 1976 rule. 596 F.2d at 1056. Here the relevant period was between May 1, 1974, when the Walker Creek Field unitization became effective, and August 29, 1975, when the ruling in question was issued. We have already reviewed the situation during this period in contrast with the situation in Standard Oil. . There was confusion and uncertainty among both FEA officials and the refiners. While the regulations could reasonably be interpreted as imposing a NPCI Last sequence of recovery, in our opinion this interpretation was not compelled. The regulations could also reasonably have been construed as imposing no particular sequence of recovery. Standard Oil, 596 F.2d at 1052. On three recent occasions, this court has found it necessary to emphasize the limited reach of Standard Oil given the unique circumstances of that case. See Sauder, 648 F.2d at 1346, (emphasizing that this court did not invalidate the agency’s interpretation in Standard Oil simply because the underlying regulatory scheme could be construed in more than one way); UPG, Inc. v. Edwards, 647 F.2d 147 at 157 nn.24 & 26 (Em.App.1981); Mountain Fuel Supply Co. v. DOE, 656 F.2d 690 (Em.App. 1981). . 596 F.2d at 1063-65 (discussing the retroactivity tests of Securities Comm’n v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), and Retail, Wholesale and Department Store U. v. N.L.R.B., 466 F.2d 380, 390 (D.C.Cir.1972)). See also Phillips, 449 F.Supp. at 797-98 (applying the same traditional tests rather than basing its decision on any “compelled construction” doctrine). See our discussion infra of retroactivity. . Tenneco Oil Co. v. Federal Energy Administration, 613 F.2d 298 (Em.App. 1979); Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). . UPG, 647 F.2d at 157. . “Interpretative rules simply state what the statute or regulation has always meant" }, { "docid": "58279", "title": "", "text": "its attempt to establish that an interpretation must fail if it is not supported by plain and certain language in the regulation interpreted. Contending that Energy Consumers is “completely distinguishable from this case,” UPG relies upon language in Tenneco Oil Co. v. FEA, 613 F.2d 298 (Em.App.1979), and additionally cites Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.1977); Standard Oil Co. v. Department of Energy, 596 F.2d 1029 (Em.App.1978); and Kraus & Bros. v. United States, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (1946), in support of its contentions that to justify the interpretation of a regulation, as distinguished from a statute, the regulation must unambiguously support the interpretation, especially in view of the “draconian penalties” which now face those who fail to comply with DOE regulations. There ordinarily is no need for an administrative interpretation of clear and unambiguous regulatory language. The law does not reject interpretations merely because there is a need for them; and the enforcement of almost all EPAA regulations as interpreted entails substantial financial consequences to oil companies, consumers, or others. Appellant misconceives the true meaning of the cases it primarily relies on; they mainly discuss the problem of willfulness in the criminal law context. The prospect that some collateral effect of the Interpretation here may be advanced as a basis of a criminal prosecution or the application of civil sanctions where the question of certainty in meaning and wilful intent may be at issue is not controlling. Time enough to address such issues if and when they are appropriately presented. It is true that there is language in Tenne-co, supra, which taken out of context lends color to UPG’s contention. That decision, correct on its facts, accepting as it did the plain meaning of the word “sale,” and the authorities it cites on the question of certainty in regulatory language are inapposite here. Inconsistency with plain meaning, or the issues of willfulness or criminal responsibility are not involved here. Kraus & Bros. v. United States, 327 U.S. 641, 66 S.Ct. 705, 90 L.Ed. 894 (1946), involved a criminal prosecution for the" }, { "docid": "9801080", "title": "", "text": "Finally, the prior decisions construing the interpretative stripper well Ruling 1974-29 to be consistent with a similar underlying statute are decisive. Energy Reserves Group, Inc. v. DOE, 589 F.2d 1082 (Em.App.1978), clarified in Duncan v. Theis, 613 F.2d 305 (Em.App.1979). II The second reason given by the District Court for its judgment was that, disregarding the preamble, the remainder of the regulation supported the judgment under the “plain meaning” rule of construction. We find this application of the plain meaning rule to be error whether the preamble was considered or disregarded. The critical phrase “average daily production” had earlier acquired a meaning by administrative interpretation in Ruling 1974-29 that excluded injection wells in calculating whether average daily production was 10 barrels or less for the purpose of the statutory stripper well lease exemption and regulation 10 C.F.R. § 210.32(b) (the latter of two consistent implementing regulations). Energy Reserves Group, Inc. v. DOE, 589 F.2d 1082 (Em.App.1978), clarified in Duncan v. Theis, 613 F.2d 305 (Em.App.1979). In reaching a conclusion that the Marginal Property Rule (disregarding the preamble) had a plain meaning contrary to the preamble to the Marginal Property Rule, contrary to the interpretation by DOE and contrary to the interpretation by this Court in the stripper well exemption cases, the District Court relied on extrinsic evidence consisting of selected portions of oral testimony by witnesses (much of which was consistent with the preamble) (J.A. 337— 513) from the industry before another judge (J.A. 277-278), and practices of state regulatory bodies and the Department of Interi- or in calculating allowables and royalties (J.A. 278). The contrary selected oral testimony (J.A. 277 — 278) was not admissible to rebut the preamble of the Marginal Property Rule, the interpretation of DOE, and the interpretation of this Court. In construing and reviewing administrative regulations of DOE, and its predecessors, the District Court must focus on “how the FEA, not the refiners, interpreted the regulations . . . . ” Standard Oil Co. v. DOE, 596 F.2d 1029, at 1067 (Em.App.1978). The exclusion of injection wells in determining the average daily production of crude" }, { "docid": "9801049", "title": "", "text": "it appears to the court that they only seek to have a portion of the rule defined in order to avoid possible civil and criminal sanctions. Since the terms they seek to have defined are not defined within the body of the regulation, this court does not find that it is being asked to impermissibly rewrite or strike down any portion of the regulation. Accordingly, the motion to dismiss is denied. Both parties have also filed motions for summary judgment and while the parties have differed in their approach to resolution of this case upon summary judgment they basically argue the same issue. That issue being a definition of “wells that produced crude oil.” The plaintiffs go directly to the dispute and simply ask the court to construe the term and give the regulation its plain meaning. On the other hand, the Department of Energy has colored the question before the court as one of procedural and substantive validity. Nevertheless, the court is of the opinion that the proper resolution of this case requires the court to construe the words “wells that produced crude oil” and that after that determination is made, summary judgment will be proper. The Department of Energy contends that it is clear in the body of the regulation that they did not intend to count injection wells when enumerating “wells that produced crude oil.” In support of this position the Department of Energy con tends that the plaintiffs have not even attempted to dispute the facts that their present position has been the definitive agency position since Ruling 1974-29, a 1974 Department of Energy regulation dealing with stripper wells. Moreover, the Department of Energy states that it was abundantly clear in the Preamble to the Marginal Property Rule published in the Federal Register that the Department of Energy did not intend to include injection wells as “wells that produced crude oil.” The Department of Energy has failed, however, to show this court precisely where in the regulation that one could turn, to know their intended meaning. Contending that they have long held their present position and" }, { "docid": "9801057", "title": "", "text": "& Health Review Commission, 528 F.2d 645, 649 (5th Cir. 1976). Moreover, fundamental fairness requires that when one may become subject to civil or criminal sanctions the language creating that possibility must adequately express it. Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 n.20 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98. Here, the Department of Energy has failed to adequately express their intention and therefore the plain meaning of the words must control. Accordingly the court declares and construes that injection wells are included within the term “wells that produced crude oil.” The plaintiffs’ motion for summary judgment is granted and the defendants’ motions for summary judgment and to dismiss are denied. A judgment will be entered in accordance with the above and the Department of Energy is hereby enjoined from excluding the counting of injection wells in the application of the Marginal Property Rule to the plaintiffs’ property. (Emphasis and footnote added.) The Contentions of the Parties on Appeal On appeal appellants assert the following contentions: A. The Marginal Property Rule precludes the counting of injection wells in determining eligibility for the exemption (Appellants’ Brief, 6) relying on prior decisions of this Court; and B. The District Court’s application of the “Plain Meaning” rule was clearly erroneous (Appellants’ Brief, 11). In opposition the appellees contend that: A. The prior decisions of this Court are unapplicable (Brief of Appellees, 5); and B. The “Plain Meaning” of the term “wells that produced crude oil” includes injection wells (Brief of Appellees, 11). Contentions of Amicus Curiae on Appeal The brief of amicus curiae Exxon attempts to support the judgment of the District Court on the same grounds relied on by the District Court and asserted by appellees, and also on additional grounds (1) contending that there are differences in this appeal and the continuing “stripper well” litigation of which Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082 (Em.App.1978) and Duncan v. Theis, 613 F.2d 305 (Em.App.1979) are a part, and (2) drawing in issue the effect of decisions of the Judicial Panel on" }, { "docid": "58278", "title": "", "text": "persuasively articulated by its Office of General Counsel. Ill On such a record we are at loss to fully understand UPG’s third contention that the district court erred by reviewing the Interpretation “under a standard that applies to the construction of statutory language.” It is true that the views of the trial court are also supportable by uncited guidelines that have been applied to the interpretation of statutory language, but such common sense without imprimatur is coin of the realm for both administrators and judges. We perceive nothing in the language of the district court nor the result it reached which justifies appellant’s assumption or which indicates other than a considerate application of our decisions concerning the standard of review applicable to administrative interpretations of regulatory language. There would be little occasion to add to our recent comprehensive discussion of the standards for review applicable here, Energy Consumers and Producers Ass’n v. DOE, supra, at 140, 142-144, were it not for the contrary emphasis appellant places upon language in previous decisions of this court in its attempt to establish that an interpretation must fail if it is not supported by plain and certain language in the regulation interpreted. Contending that Energy Consumers is “completely distinguishable from this case,” UPG relies upon language in Tenneco Oil Co. v. FEA, 613 F.2d 298 (Em.App.1979), and additionally cites Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.1977); Standard Oil Co. v. Department of Energy, 596 F.2d 1029 (Em.App.1978); and Kraus & Bros. v. United States, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (1946), in support of its contentions that to justify the interpretation of a regulation, as distinguished from a statute, the regulation must unambiguously support the interpretation, especially in view of the “draconian penalties” which now face those who fail to comply with DOE regulations. There ordinarily is no need for an administrative interpretation of clear and unambiguous regulatory language. The law does not reject interpretations merely because there is a need for them; and the enforcement of almost all EPAA regulations as interpreted entails substantial financial consequences to oil" } ]

[ { "docid": "31275", "title": "", "text": "construing § 1983 “borrow” the forum state’s general personal injury limitations period. See Owens v. Okure, 488 U.S. 235, 249-50, 109. S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989). Because the Texas statute of limitations is borrowed in § 1983 cases, Texas’ equitable tolling principles also control. See Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980). Therefore our conclusions relative to Rotella’s state tolling claims control this question as well. Rotella argues that Texas fraudulent concealment doctrine is inconsistent with the federal fraudulent concealment doctrine because the federal doctrine does not hold that the duty to disclose in a medical context ends when the physician/patient relationship ends. First, no authority supports this contention. At most, federal law is silent on this point. Second, such inconsistency is irrelevant. Although a state’s tolling provisions cannot be inconsistent with the policies underlying § 1983, there is no authority for the proposition that it must be consistent with the federal tolling provisions. See Rubin v. O’Koren, 644 F.2d 1023, 1025 (5th Cir.1981). Rotella makes no argument, and we see no basis for holding, that the Texas tolling laws are inconsistent with policies underlying § 1983. Therefore, we conclude that the district court correctly dismissed the federal claims because they are likewise barred by limitations. CONCLUSION Based on the foregoing, we affirm the district court’s dismissal because Rotella’s claims are barred by the applicable statutes of limitations. AFFIRMED. . See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)." } ]

[ { "docid": "22476845", "title": "", "text": "F.2d 1235, 1248-51 (1989); Green v. Ferrell, 801 F.2d 765, 768-69 (5th Cir.1986). The injury occurs, if at all, when the procedures are disregarded or abused. Here, Gartrell has alleged that certain prison officials used TDCJ disciplinary and grievance procedures to retaliate against him for his prison writ-writing activities. His complaint specifically describes alleged violations of TDCJ procedures occurring on or about April 27, May 1, May 4, May 21, and June 29, 1990. With regard to each of these claims, Gartrell names the specific TDCJ official who took the allegedly improper action and provides signed and dated TDCJ forms to support the claim. Gart-rell’s own pleading thus establishes that, by May 25, 1990, he was in possession of the critical facts regarding every aspect of his complaint except the June 29,1990 denial of his final administrative appeal. Therefore, with that one exception, Gart-rell’s claims accrued more than two years prior to the filing of this action, and, absent a tolling provision, they were properly dismissed by the district court as barred by the applicable statute of limitations. 2. In applying the forum state’s statute of limitations, the federal court should also give effect to any applicable tolling provisions. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.1992); Jackson v. Johnson, 950 F.2d at 265. Although Texas law formerly considered imprisonment to be a disability that tolled the running of the statute of limitations, that is no longer the ease. See Tex.Civ.PRAc. & Rem.Code § 16.-001 (Vernon 1988). Texas courts, however, have developed a common-law tolling rule that tolls the running of the limitations period when a person is prevented from exercising a legal remedy by the pendency of legal proceedings. See Rodriguez, 963 F.2d at 804-05 (citing Texas cases); Jackson v. Johnson, 950 F.2d at 265-66 (citing Texas cases). We have found that this rule operates to toll the running of the limitations period in cases where a state prisoner is required to exhaust state remedies before proceeding with a claim in federal court. See Rodriguez, 963 F.2d at 805; see also Jackson v. Johnson, 950 F.2d at 266-67" }, { "docid": "10226490", "title": "", "text": "Finally, Plaintiffs contest the district court’s rulings with respect to complaint sufficiency, qualified immunity, and leave to amend the complaint. We conclude that the district court did not err in finding that Plaintiffs’ Title IX and § 1983 claims are time-barred. Accordingly, we do not reach the remaining issues. II. STANDARD OF REVIEW “A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs pleadings that the action is barred and the pleadings fail to' raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.2003). We review a district court’s dismissal under Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most .favorable to the plaintiffs.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008)). When the district court declines to “exercise its equitable discretion to toll,” however, “we review [that] decision[] on the pleadings only for abuse of discretion.” Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir.2002). In conducting our review, “we assume the pleaded facts as true, and we will remand if the plaintiff has pleaded facts that justify equitable tolling.” Id. III. DISCUSSION A. Selecting the Appropriate Statute of Limitations When a federal statute does not contain a limitations period (as is the case for Title IX and § 1983), the settled practice is to borrow an “appropriate” statute of limitations from state law. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), partially superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); see also 42 U.S.C. § 1988. The district court in this case dismissed Plaintiffs’ Title IX and § 1983 claims after determining that both claims were governed by Texas’s two-year statute of limitations for personal injury actions, which is set out in Section 16.003 of the Texas Civil Practice and Remedies Code. Section 16.003 states in" }, { "docid": "17114819", "title": "", "text": "Jackson was imprisoned. The limitation period now begins to run when the cause of action accrued, or on September 1, 1987, if the cause of action accrued prior to the effective date of the statute. Tex.Civ.Pract. & Rem.Code § 16.001 (Vernon 1988). Although Texas law governs the limitations period and the tolling exceptions, federal law governs when a cause of action arises. Burrell, 883 F.2d at 418. Under federal law, a cause of action arises “ ‘when the plaintiff knows or has reason to know of the injury which is the basis of the action.’ ” Id. (quoting Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980)). By Jackson’s admission, his cause of action arose on February 2, 1988. The present lawsuit was filed on January 17, 1991, over two years after Jackson’s cause of action arose. Jackson argues that because he timely filed his first civil rights complaint in this matter in 1988, the statute of limitations should not have run against him while he was pursuing his state remedies as he was directed to do by the district court. Although the tolling provision previously available to prisoners is not applicable to Jackson’s case, there is another Texas tolling rule which may be appropriate. Texas courts have held that as a general rule, where a person is prevented from exercising his legal remedy by the penden-cy of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right. Weisz v. Spindletop Oil and Gas Co., 664 S.W.2d 423, 425 (Tex.Ct.App.1983); Walker v. Hanes, 570 S.W.2d 534, 540 (Tex.Ct.App.1978); Cavitt v. Amsler, 242 S.W. 246, 249 (Tex.Ct.App.1922). When Jackson filed his first civil rights lawsuit in 1988, it was dismissed by the district court for failure to exhaust state remedies. Although Jackson’s pleadings in the first case are not presently before this court, it is assumed that Jackson’s case was dismissed for failure to exhaust because the claim was one which would undermine the validity of the state court conviction, and thus sounded in habeas. In such" }, { "docid": "7720525", "title": "", "text": "claim.) According to this rationale, time began to run on Holmes’ claim on August 10, 1992, the date of the initial written notice of termination. The district court found this to be the case and ruled that Holmes’ suit was untimely. Holmes did not dispute the application of the two-year limitations period at the district court level. Instead, he argued that the limitations period should have been tolled until May 31, 1994 — his effective termination date. Again on appeal, Holmes asserts that the Texas statute of limitations was equitably tolled during the pendency of Texas A & M’s administrative procedures occurring between August 10, 1992, and May 27, 1994, during which time the EEOC issued its ruling. Holmes insists that a federal court applying a state statute of limitations should also give effect to that state’s tolling provisions. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992) (applying Texas tolling provisions in an action under 42 U.S.C. § 1983). “Texas courts have held that as a general rule, where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Id. Holmes contends that he is entitled to the equitable tolling of the statute of limitations for the pendency of two separate proceedings: his pursuit of internal university remedies and the exhaustion of his administrative remedies with the EEOC. We decline to consider the difficult issue of whether exhaustion of administrative remedies with the EEOC is required under Title II of the ADA, a matter moot to the resolution of this appeal. Even if it was necessary for Holmes to exhaust his remedies with the EEOC before bringing federal suit, under no circumstances was Holmes required to exhaust his internal university remedies. In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court addressed this precise issue. In Ricks, a professor at a state college was denied tenure, a decision he alleged was based on" }, { "docid": "7720528", "title": "", "text": "F.2d 263, 265 (5th Cir.1992). There is no Texas authority to suggest that Holmes could not have filed suit if he did not first exhaust his university remedies. Cf. Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1318 (S.D.Tex.1996) (noting that the pursuit of Texas A&M grievance procedures does not toll the statute of limitations on a § 1983 claim); Vincent v. West Texas State Univ., 895 S.W.2d 469, 474 (Téx.App. — Amarillo 1995, no writ) (holding that pursuit of internal university remedies did not satisfy Texas statutory exhaustion requirement for labor claims). Thus, Holmes deserves no equitable tolling for the pendency of his university grievance procedures, a remedy which he need not have pursued. Accordingly, regardless of whether administrative exhaustion with the EEOC is required under Title II of the ADA, Holmes’ suit was time-barred. If EEOC exhaustion was so required, the statute of limitations began to run on September 20,1993, the date that Holmes received notice that the EEOC had denied his claim. If EEOC exhaustion was not required, the statute commenced running on the date that Holmes’ cause of action accrued, August 10,1992. Either way, under Texas’ two-year statute of limitations, Holmes’ suit filed on April 15, 1996, was untimely. Finally, Holmes argues in the alternative that the general federal four-year limitations period in 28 U.S.C. § 1658 applies in this case, thus making his ADA suit timely. Because Holmes did not raise the applicability of § 1658 in the district court, we review the issue under the plain-error standard. See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 786 (1995) (applying, in a civil case, the plain-error analysis of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The Supreme Court recently reiterated the parameters of the Olano plain-error test. The Court held that “before an appellate court can correct an error ’ not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’" }, { "docid": "22163360", "title": "", "text": "Court are generally not considered because the district court did not have the opportunity to consider them.” Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir.1999) (per curiam). While there are five exceptions to this general rule, see Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir.1984), we will not exercise our discretion to entertain the parties’ arguments for the first time on appeal in this case, see United States v. Southern Fabricating Co., 764 F.2d 780, 781 (11th Cir.1985) (per curiam) (observing that “[t]he decision whether to consider” an argument raised for the first time on appeal “is left to the appellate court’s discretion”). Instead, we vacate the district court’s sua sponte dismissal of Leal’s § 1983 suit and remand for the district court to consider, in the first instance, whether the statute of limitations is tolled by a prisoner’s satisfaction of the mandatory exhaustion requirements of § 1997e(a). See Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.2000) (“the statute of limitations which applied to [the prisoner’s] civil rights action was tolled for the period during which his available state remedies were being exhausted”); Harris v. Hegmann, 198 F.3d 153, 156-59 (5th Cir.1999) (looking to state tolling doctrines to determine whether a prisoner’s mandatory exhaustion of administrative remedies under § 1997e(a) should toll the statute of limitations for purposes of a § 1983 suit). If the district court resolves this legal issue in favor of tolling, then the court should address the factual issue of whether Leal pursued administrative remedies such that sufficient tolling occurred to enable Leal to avoid a statute of limitations bar. Should the court find the limitations period satisfied, it should address the DOC’s arguments that it is not amenable to suit under § 1983, and the court may, in its discretion, permit Leal to amend his complaint to add the proper parties. Because none of these issues were decided initially, we decline to address them for the first time on appeal. Instead, we vacate the district court’s sua sponte dismissal for failure to state a claim and remand" }, { "docid": "19183414", "title": "", "text": "the defendants, the magistrate judge sua sponte recommended that the claims against Foster, Geerdes, and Edwards be dismissed as time-barred, and that the claims against McClain-Roberson also be dismissed as frivolous. Stanley filed objections, and after de novo review, the district court accepted the magistrate judge’s report and dismissed with prejudice all of the claims. Stanley now appeals. Stanley argues simply that the district court erred in dismissing his suit as time-barred because the statute of limitations should be calculated from the date he initially filed the suit, rather than the date it was reinstated. We review such a dismissal for abuse of discretion. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.1994). In a § 1983 suit, district courts apply the forum state’s statute of limitations. Moore, 30 F.3d at 620. In Texas, the limitations period for personal injury claims is two years. Tex. Civ. Prac. & Rem.Code § 16.003(a) (Vernon 2002). A district court “may raise the defense of limitations sua sponte ... [and][d]ismissal is appropriate if it is clear from the face of the complaint that the claims asserted are barred by the applicable statute of limitations.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.1999). Stanley acknowledges that his claims against Foster, Geerdes, and Edwards accrued in April 2002, at the latest, and he does not argue that the two-year statute of limitations does not apply. Rather, he argues that because the district court reinstated the appeal under the same cause number, that the applicable date for limitations purposes is the initial date Stanley filed his suit, rather than the date the suit was reinstated. This suit presents us with the conflict of two seemingly-incompatible general rules. First, we have stated: A federal court that dismisses without prejudice a suit arising from a federal statutory cause of action has not adjudicated the suit on its merits, and leaves the parties in the same legal position as if no suit had been filed. We have recognized that such a dismissal will result in an action being time-barred if the applicable statute of limitations has run after the" }, { "docid": "10226509", "title": "", "text": "opinion. As such, we apply the ordinary rules discussed above and conclude that Plaintiffs’ claims accrued by the time A.W. turned 18 in the spring of 2011. Because this was more than two years before Plaintiffs filed suit, Plaintiffs’ Title IX and § 1983 claims are time-barred unless.equitable tolling principles apply. C. Determining Whether Equitable Tolling Principles Apply Plaintiffs’ final argument with respect to timeliness is that even if the applicable statute of limitations would otherwise bar their claims against HISD and the School Officials, the district court should have applied certain equitable tolling principles, including fraudulent concealment and the discovery rule, to forestall the expiration of the limitations period. The record before us, however, dispels any notion that the equitable principles identified by Plaintiffs would be available to save their claims. When a federal cause of action borrows a state statute of limitations, “coordinate tolling rules” are usually borrowed as well. Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989) (quoting Bd. of Regents of the Univ. of N.Y. v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980)). We have-accordingly recognized that state equitable tolling principles control in § 1983 cases. Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir.1998). This includes tolling based on fraudulent concealment and the “discovery rule.” See id. at 896-97. Under Texas law, the “discovery rule” provides a “very limited exception to statutes of limitations.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996), superseded by statute as stated in Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 3 (Tex.1999). While accrual of a Texas personal injury action generally occurs when “a wrongful act causes an injury, regardless of when the plaintiff learns of that injury,” the “judicially-crafted” discovery rule defers accrual of the cause of action if “the nature of the injury incurred is inherently undis-coverable and the evidence of injury is objectively verifiable.” Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex.1998) (citation and quotation marks omitted). In such a circumstance, the cause of action does not" }, { "docid": "18375320", "title": "", "text": "be construed as having tolled the applicable statutes of limitations: “[Wjhere a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Piotrowski v. City of Houston, 237 F.3d 567, 577 n. 14 (5 th Cir.2001) (applying Texas law ). See also Versluis v. Town of Haskell, Okla., 154 F.2d 935, 942 (10th Cir.1946)(“it is ... well recognized ... that ‘whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right.’ ”). Moreover, Plaintiffs emphasize that additional rounds of depositions after the close of discovery might be necessary because of the new claims and new Defendants if the amendment were delayed. Cincinnati and OTTA ask permission to join the Ohio Retirement Systems as Plaintiffs with the filing of the new complaint for reasons of economy and efficiency. Moreover, they fear that in waiting until the Neiuby class is certified to request joinder with leave to amend, their state-law claims might become time-barred. These two, as putative class members in the Newby action until opting out, claim entitlement to the protections of the American Pipe tolling doctrine for the claims they seek to assert in the proposed amended complaint and request that the Court determine that they have a right to such benefits and protections, even though they seek to file a complaint before the Court ruled on class certification. Joseph v. Wiles, 223 F.3d 1155, 1166-68 & n. 9 (10th Cir.2000) (holding that the American Pipe tolling doctrine (filing of a class action under Federal Rule of Civil Procedure 23 tolls statute of limitations, from the time the class action is filed to the time class certification is denied) applies to claims of a putative class member who opts out before a class is certified: “Defendants’ potential liability should not be extinguished simply because the" }, { "docid": "7720524", "title": "", "text": "that he did not have a cause of action under the ADA. The only date he suggests as the date of accrual is the May 31, 1994 termination date of which he was notified in an August 10, 1992 letter, and which Texas A & M affirmed on May 27, 1994. Holmes claims that because he filed this action on April 15, 1996, less than two years from the May 31, 1994 accrual date, it is not time-barred. Holmes concedes, however, that the limitations period on a cause of action under a federal statute begins to run from the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir.1987). See also Burfield v. Brown, Moore & Flint, 51 F.3d 583, 589 (5th Cir.1995) (ADA cause of action arises when employee receives unequivocal notice of facts giving rise to his claim or when a reasonable person would know of the facts giving rise to a claim.) According to this rationale, time began to run on Holmes’ claim on August 10, 1992, the date of the initial written notice of termination. The district court found this to be the case and ruled that Holmes’ suit was untimely. Holmes did not dispute the application of the two-year limitations period at the district court level. Instead, he argued that the limitations period should have been tolled until May 31, 1994 — his effective termination date. Again on appeal, Holmes asserts that the Texas statute of limitations was equitably tolled during the pendency of Texas A & M’s administrative procedures occurring between August 10, 1992, and May 27, 1994, during which time the EEOC issued its ruling. Holmes insists that a federal court applying a state statute of limitations should also give effect to that state’s tolling provisions. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992) (applying Texas tolling provisions in an action under 42 U.S.C. § 1983). “Texas courts have held that as a general rule, where a person is prevented from" }, { "docid": "22402438", "title": "", "text": "City itself, as opposed to individual officers, had a policy of assisting Bell and keeping information from Piotrow-ski. . In cases where fraudulent concealment is involved, the statute of limitations does not begin to run until the relevant facts, which are in the control of the defendant, become known to the plaintiff: \"When a defendant controls the facts surrounding causation such that a reasonable person could not obtain the information even with a diligent investigation, a cause of action accrues, but the statute of limitations is tolled.” Piotrowski I, 51 F.3d at 517. See also United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979); Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1521-22 (5th Cir.1993). .The doctrine of equitable tolling protects her second suit, filed in 1995, from untimeliness. When the applicable statute of limitations is borrowed from the state, that state’s tolling provisions are to be the \"primary guide” for the courts. FDIC v. Dawson, 4 F.3d 1303, 1312 (5th Cir.), cert. denied, 512 U.S. 1205, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994). Under Texas law, \"where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992)(citing Weisz v. Spindletop Oil and Gas Co., 664 S.W.2d 423, 425 (Tex.App.-Corpus Christi 1983, no writ)). Piotrowski was prevented from filing suit because the trial court had initially dismissed her claim with prejudice, a disability not removed until the decision of this court in Piotrowski I. . The equal protection clause requires that all persons similarly situated be treated alike. See City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1989). In order to establish a violation of equal protection, a plaintiff must show \" 'the existence of purposeful discrimination’ motivating the state action which caused the complained-of injury.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th" }, { "docid": "13687350", "title": "", "text": "§ 1983 and § 1985 claims until the state habeas proceedings were exhausted, Burge’s June 1991 filing of his civil rights claims was not prescribed. See Rodriguez v. Holmes, 963 F.2d 799, 805 (5th Cir.1992) (applying Texas tolling provision, and noting that federal courts have equitable power to fashion tolling provisions in exceptional circumstances); Jackson, 950 F.2d at 266 (Texas law). While Burge may have been stymied in prosecuting his civil rights claims, he could have tolled the prescriptive period by filing suit in federal court and simultaneously requesting that the action be stayed pending the outcome of his state proceedings. See, e.g., Jewell v. County of Nassau, 917 F.2d 738, 740—41 (2nd Cir.1990) (New York’s statutory tolling provisions inapplicable; judicial stay was “only means by which bar of limitations may be avoided.”) (citing Board of Regents v. Tomanio, 446 U.S. 478, 486-87, 100 S.Ct. 1790, 1796-97, 64 L.Ed.2d 440) (1980)). We have recognized that district courts retain discretion to take such a step to protect plaintiffs against the running of a limitations period. See Borning v. Cain, 754 F.2d 1151, 1152-53 (5th Cir.1985); Richardson v. Fleming, 651 F.2d 366, 375 (5th Cir.1981); Fulford, 529 F.2d at 382, adhered to en banc, 550 F.2d 342 (5th Cir.1977). Nevertheless, in light of Louisiana’s jurisprudential tolling mechanism discussed above, we see no purpose in requiring this plaintiff to perform the hollow act of filing a premature complaint pending the exhaustion of his state remedies. IV. Louisiana’s liberative prescription period was tolled because Burge faced a legal impediment which precluded him from prosecuting his federal civil rights action. His § 1983 and 1985 claims were, therefore, timely filed. We REVERSE the dismissal of his claims and REMAND the matter for further proceedings. . Although state law governs the limitations period and tolling exceptions, see discussion infra at § II, federal law governs when a civil rights action accrues. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992). Under federal law, such actions accrue \"when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id." }, { "docid": "10226489", "title": "", "text": "the Education Act of 1972. Plaintiffs also asserted various tort claims under Texas state law. Named as defendants in the original complaint were Feenstra, HISD, and the School Officials. HISD and the School Officials moved to dismiss Plaintiffs’ claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the federal claims were time-barred, the pleadings were insufficient, and the individual Defendants were entitled to qualified immunity. The district court granted the motions to dismiss, concluding (as relevant to this appeal) that the § 1983 and Title IX claims were untimely. Plaintiffs now argue that the district corut erred in determining that these claims were time-barred. Plaintiffs contend that, rather than applying Texas’s general two-year personal injury statute of limitations, the district court should have applied the five-year exception for sexual assault claims. Plaintiffs also argue that (1) the district court incorrectly determined accrual of the federal claims for purposes of calculating whether the limitations period had expired, and (2) the court abused its discretion in refusing to apply certain equitable tolling principles. Finally, Plaintiffs contest the district court’s rulings with respect to complaint sufficiency, qualified immunity, and leave to amend the complaint. We conclude that the district court did not err in finding that Plaintiffs’ Title IX and § 1983 claims are time-barred. Accordingly, we do not reach the remaining issues. II. STANDARD OF REVIEW “A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs pleadings that the action is barred and the pleadings fail to' raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.2003). We review a district court’s dismissal under Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most .favorable to the plaintiffs.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008)). When the district court declines to “exercise its equitable discretion to toll,” however, “we review [that] decision[] on the pleadings only for abuse of discretion.” Teemac" }, { "docid": "2163233", "title": "", "text": "OPINION MERRITT, Circuit Judge. This appeal arises from pro se Kentucky prisoner Roger Anthony Brown’s civil rights suit against prison officials for allegedly denying him access to the courts. The District Court dismissed his civil rights suit as frivolous for failure to comply with the statute of limitations pursuant to 28 U.S.C. § 1915A. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. See Fed. R.App. P. 34(a). Brown, proceeding in forma pauperis, claimed in a complaint dated November 30, 1998, that several Kentucky corrections officials denied him access to the courts by denying him access to legal books and legal aides. The District Court dismissed Brown’s suit, concluding that it was barred by Kentucky’s one-year statute of limitations. In his timely appeal, Brown argues that the district court erred by dismissing his suit as barred by the statute of limitations. The defendants have not been served. We review de novo a judgment dismissing a suit as frivolous under § 1915A. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (1999) (emphasis added). This language unambiguously requires exhaustion as a mandatory threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of time required to exhaust “such administrative remedies as are available.” For this reason, the statute of limitations which applied to Brown’s civil rights action was tolled for the period during which his available state remedies were being exhausted. See Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir.1999) (per curiam); Cooper v. Nielson, 194 F.3d 1316, 1999 WL 719514 (9th Cir.1999). In the case before us, it is not clear when the period of" }, { "docid": "22267825", "title": "", "text": "that he substantially complied with the TDCJ administrative procedures by filing a Step One grievance, which put the prison on notice of his complaint and offered the authorities an opportunity to mediate the dispute. But he did not pursue the grievance remedy to conclusion. Nothing in the Prison Litigation Reform Act, however, prescribes appropriate grievance procedures or enables judges, by creative interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems., TDCJ has promulgated a detailed, complex and carefully thought-out program to facilitate the filing of grievances and assure their prompt, dispassionate investigation. The PLRA required Wright to exhaust “available” “remedies”, whatever they may be. His failure to do so prevents him from pursuing a federal lawsuit at this time. Third, Wright criticizes Hollingsworth, the remaining defendant, for not timely raising her exhaustion defense in the district court. Even if we allow that the procedural development of this case has been erratic, it is too late for Wright’s waiver claim, newly raised after three years of litigation and after remand from the Supreme Court. Wright’s final points request, if all else fails, dismissal without prejudice and equitable tolling of the Texas statute of limitations during the pendency of this action and any additional state administrative proceedings. These modifications of the judgment are appropriate. See Wendell v. Asher, 162 F.3d. 887, 892 (5th Cir.1998) (dismissal without prejudiee); Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir.1999) (under PLRA exhaustion requirement, limitations on a prisoner’s § 1983 claims is tolled during administrative proceedings). For the foregoing reasons, the judgment of the district court is AFFIRMED as MODIFIED, i.e., Wright’s case is dismissed without prejudice pending exhaustion of TDCJ grievance procedures and limitations will be tolled pending exhaustion. AFFIRMED as MODIFIED. . The 42 U.S.C. § 1997e exhaustion requirement is not jurisdictional and may be subject to certain defenses such as waiver, estoppel or equitable tolling. Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir.1998)." }, { "docid": "2470512", "title": "", "text": "tolled during the pen-dency of one suit if that suit does not hinder the claimant’s ability to bring another. See id. Another panel of this court previously addressed a situation like this in an unpublished decision, whose reasoning we conclude is sound. Gant v. Garofano, 119 Fed.Appx. 602, 602 (5th Cir. 2004). The district court dismissed prisoner Gant’s Section 1983 claims as time-barred. Id. He had previously filed unsuccessful lawsuits in state and federal court; he argued that the statute of limitations was tolled by the pendency of his prior lawsuits. Id. We disagreed, relying on Texas equitable-tolling principles. Id. at 603. Nothing about the prisoner’s prior lawsuits forced him to delay filing his Section 1983 claims; he simply waited too long to do so. Id. Thus, even while his state lawsuit was proceeding, Quinn could have asserted Section 1983 claims in a new suit. The statute of limitations thus continued to run in this case, expiring well before Quinn alleged a violation of federal law. To save his federal claims against the officers, Quinn asks us to apply the relation-back doctrine. The technical pleading errors Quinn asks us to forgive are not the type of errors that relation back is designed to fix, such as misnomer and misidentification. See Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010); Univ. of Tex. Health Sci Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 400-01 (Tex. 2011). Quinn correctly identified the defendants he wished to sue. The pleading error was failing to allege a federal cause of action until it was too late. In other words, relation back is designed to ameliorate certain kinds of mistakes, but Quinn made a tactical choice to omit his federal claims until March 2009. As a result, the relation-back doctrine does not apply. Finally, Quinn argues the concept of identity of interest saves his federal claims. Quinn adequately describes what it means for parties to share an identity of interest using this court’s decision in Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998): An identity of" }, { "docid": "2470511", "title": "", "text": "plea to the jurisdiction by a governmental unit[.]” Substantive claims of immunity constitute pleas to the jurisdiction. City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012). Quinn thus had the right to appeal the state court’s dismissal of the officers under Section 101.106(e). See Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011). Beyond the question of Quinn’s right to appeal the dismissal, a different rule of law applies to bar Quinn’s Section 1983 claims. “Texas courts have held that as a general rule, where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Jackson v. Jackson, 950 F.2d 263, 265 (5th Cir. 1992). For example, the statute of limitations on a prisoner’s Section 1983 claims may be tolled if he is first required to exhaust state remedies. Id. at 265-66. It follows, then, that the statute of limitations is not tolled during the pen-dency of one suit if that suit does not hinder the claimant’s ability to bring another. See id. Another panel of this court previously addressed a situation like this in an unpublished decision, whose reasoning we conclude is sound. Gant v. Garofano, 119 Fed.Appx. 602, 602 (5th Cir. 2004). The district court dismissed prisoner Gant’s Section 1983 claims as time-barred. Id. He had previously filed unsuccessful lawsuits in state and federal court; he argued that the statute of limitations was tolled by the pendency of his prior lawsuits. Id. We disagreed, relying on Texas equitable-tolling principles. Id. at 603. Nothing about the prisoner’s prior lawsuits forced him to delay filing his Section 1983 claims; he simply waited too long to do so. Id. Thus, even while his state lawsuit was proceeding, Quinn could have asserted Section 1983 claims in a new suit. The statute of limitations thus continued to run in this case, expiring well before Quinn alleged a violation of federal law. To save his federal claims against the officers, Quinn" }, { "docid": "9877704", "title": "", "text": "however, Flores waited until November 15, 2001 — only two days shy of what he thought was the deadline — to file for state habeas relief. See Coleman, 184 F.3d at 403 (“In order for equitable tolling to apply, the applicant must diligently pursue his § 2254 relief.”). In the absence of “rare and exceptional circumstances,” the district court abused its discretion in invoking equitable tolling where Flores, in the face of uncertainty as to which date to abide by, elected the later date. Given that Flores’ petition was time-barred, we do not reach the merits of Flores’ claims of ineffective assistance of counsel. IV. CONCLUSION For the foregoing reasons, we affirm the district court’s judgment on grounds that Flores’ § 2254 petition is barred by the one-year statute of limitations. . Texas Rule of Appellate Procedure 68.2 provides that a petition for discretionary review must be filed within 30 days after the day the court of appeals’ judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals. . While the filing of a state habeas application ordinarily tolls the federal one-year statute of limitations, Flores did not file his state application until November 15, 2001 — more than one year after his sentence became final, and almost two months after the statute of limitations expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.2000)(holding that state applications filed after expiration of limitations period do not toll limitations period). . If the holding in a case is applied retroactively to the parties in that case, it must be applied retroactively to the parties in other cases. See Sterling v. Block, 953 F.2d 198, 199 (5th Cir.1992). We applied the holding of Roberts to the parties therein and affirmed the dismissal of the § 2254 petition as time-barred; the holding of Roberts is thus also retroactively applicable to Flores. . See, e.g., Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001) (holding that under Florida law, issuance of mandate on direct appeal makes criminal judgment final, and that that date will" }, { "docid": "7720527", "title": "", "text": "discriminatory motives. He unsuccessfully appealed his tenure denial via the college’s grievance procedures and then attempted to file an administrative complaint with the EEOC. Unfortunately, Ricks’s EEOC complaint was filed more than 180 days after his tenure denial. On appeal, the EEOC, friendly to Ricks’ position, argued to the Supreme Court that the EEOC statute of limitations should have been tolled for the period during which Ricks was pursuing the college’s internal grievance remedies. The Court rejected this contention, noting that “the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations period.” Id. at 261, 101 S.Ct. at 506. Although Ricks concerned the statute of limitations for filing a complaint with the EEOC, rather than the Texas limitations period at issue here, we still consider the Ricks opinion persuasive on this point. Texas permits the tolling of a statute of limitations only where a plaintiffs’ legal remedies are precluded by the pendency of other legal proceedings. See Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992). There is no Texas authority to suggest that Holmes could not have filed suit if he did not first exhaust his university remedies. Cf. Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1318 (S.D.Tex.1996) (noting that the pursuit of Texas A&M grievance procedures does not toll the statute of limitations on a § 1983 claim); Vincent v. West Texas State Univ., 895 S.W.2d 469, 474 (Téx.App. — Amarillo 1995, no writ) (holding that pursuit of internal university remedies did not satisfy Texas statutory exhaustion requirement for labor claims). Thus, Holmes deserves no equitable tolling for the pendency of his university grievance procedures, a remedy which he need not have pursued. Accordingly, regardless of whether administrative exhaustion with the EEOC is required under Title II of the ADA, Holmes’ suit was time-barred. If EEOC exhaustion was so required, the statute of limitations began to run on September 20,1993, the date that Holmes received notice that the EEOC had denied his claim. If EEOC exhaustion was not required, the statute" }, { "docid": "15355563", "title": "", "text": "181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Mathis’s successive state petition raising his Atkins claim, however, tolled the one-year statute of limitations. § 2244(d)(2). Therefore, the limitations period tolled from June 20, 2003 until April 22, 2004, the day after the Texas Court of Criminal Appeals denied Mathis’s motion for reconsideration of its denial of his second state petition. See Windland v. Quarterman, 578 F.3d 314, 317 (5th Cir.2009) (“Applying the plain language of the statute, we hold that a state petition for habeas relief is ‘pending’ for AEDPA tolling purposes on the day it is filed through (and including) the day it is resolved.”). But Mathis filed the state petition on June 20, 2003, the last day of the AEDPA limitations period for his Atkins claim. He thus had only one day left in his AED-PA limitations period, making his successive federal petition raising an Atkins claim due on April 23, 2004. Instead, Mathis’s successive federal petition currently before us was filed well past the deadline. Accordingly, the successive federal petition is time-barred unless Mathis can establish that he is entitled to equitable tolling. B. Equitable Tolling Mathis argues that, even if his successive petition is untimely, the district court erred when it denied equitable tolling to his Atkins claim, because (1) it failed to consider his dilemma created by the Texas two-forum rule and (2) he should be entitled to equitable tolling based upon his mental retardation. The district court’s decision regarding equitable tolling of AEDPA’s statute of limitations is reviewed for abuse of discretion. Stone v. Thaler, 614 F.3d 136, 137-38, 2010 WL 3034809, at *1 (5th Cir.2010). Nonetheless, “[w]e must be cautious not to apply the statute of limitations too harshly.” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). Recently, the Supreme Court confirmed the holding of this and other circuits that AEDPA’s one-year statute of limitations is not jurisdictional and may be equitably tolled. Holland v. Florida, — U.S. —, 130 S.Ct. 2549, 2561, 177 L.Ed.2d 130 (2010). A habeas petitioner is entitled to equitable tolling only if he shows “ ‘(1) that" } ]

[ { "docid": "22430912", "title": "", "text": "importer or his agent on the other,- are brought into communication and intercourse by the act of entry of the import, and opportunities .for explanation easily occur for every difference that may arise. Wé are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute.- It is sufficient if the importer indicates distinctly -and definitely the source of his complaint, and his design.to make it the foundation for a claim against the government.” The protest was held to be sufficient. So, in Arthur v. Morgan 112 U. S. 495, it was held that a protest against paying a certain duty upon a carriage, which stated that the carriage was “ personal effects,” and had been' used over a year, and that, under the Revised Statutes, “personal effects in actual use” are free from duty, was sufficient, upon which the amount paid for duty could be recovered back on the ground that the carriage was free from duty as “household effects” under the same statute. It was said by Mr. Justice Blatchford: “ The protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought’ to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure.” .In the case-under considera-' 'tion, the importer claimed in substance in his protest, that the duty of ’ 24 per cent was excessive, and that the goods were- liable- only to a duty of 19 per cent “ as a manufacture of worsted.” Hisfinsistence upon classifying them as a manufacture of worsted indicated clearly that the objection made was substantially to their classification as “de laines.” We think- the collector upon reading this protest could have no' doubt;in his mind that the intention of the importer was to object to the failure to classify the goods as a manufacture of worsted. Some allowance must be made" } ]

[ { "docid": "14596967", "title": "", "text": "objection advanced by the de fendant that the protest does not set forth a legally sufficient claim of clerical error. Defendant argues that the protest does not apprise the collector of the real substance of the claim in that it does not contain distinct and specific reasons for plaintiff’s objection to the collector’s refusal to accede to its demand. Accordingly, defendant urges us to dismiss the protest. The pertinent portion of the protest, dated May 7,1952, reads as follows: Notice of dissatisfaction is hereby given with and protest is hereby made against your decision of April 24, 1952 refusing to reliquidate the entry below described. We claim that there was a clerical error within the meaning of section 520(c) (1) of the Tariff Act of 1930 as amended, which was discovered within one year of the date of entry and that you should reliquidate this entry in accordance with our demand of April 2,1952. We think the objection to the sufficiency of the protest comes too late. An objection of this nature must be seasonably made. Defendant’s participation with plaintiff in a stipulation of facts and subsequent submission of the case for disposition on the merits constitutes an implied waiver of any defects in the protest, and is, in effect, a consent that the case be decided on the merits. Langfelder, Homma & Hayward, Inc. v. United States, 2 Cust. Ct. 525, Abstract 40344. Apart from the question of waiver, we think the protest is legally sufficient. A protest need not be made with technical precision. It is sufficient if the importer indicates distinctly and definitely the source of his complaint and his design to make it the foundation for a claim against the Government. Greeley's Administrator v. Burgess (Converse v. Burgess), 59 U.S. 413. If it fairly and accurately apprises the collector of the objection which is raised against his action, so that he may have an opportunity to reconsider, a protest is legally sufficient. Arthur v. Morgan, 112 U.S. 495. The instant protest assigns as the reason for the importer’s grievance the collector’s refusal to reliquidate the subject" }, { "docid": "23509350", "title": "", "text": "of cotton were to be taken as containing eighty per cent of hair in value as compared with the value of the cotton. The case was disposed of below on the question of the sufficiency of the protest, and that is really the only question for consideration here. The requisition of the statute, Rev. Stat. §§ 2931, 3011; Act of Feb. 27,1877, c. 69, 19 Stat. 240, 247, as to the notice to be given the collector, in order to recover back an excess of duties paid, is thus expounded by Mr. Justice Clifford in Davies v. Arthur, 96 U. S. 148, 151. “Protests of the kind must contain a distinct and clear specification of each substantive ground .of objection to the payment of the duties. Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated. Burgess v. Converse, 2 Curt. 223. “ Two objects, says Judge Curtis, were intended to be accomplished by the provision in the .act of Congress requiring such a protest: 1. To apprise the collector of the objections entertained by the importer, before it should be too late to remove them, if capable of being removed. 2. To hold the importer to the objections which he then contemplated, and on which he really acted, and prevent him, or others in his behalf, from seeking out defects in the proceedings, after the business should be closed, by the payment of the money into the Treasury. Warren v. Peaselee, 2 Curt. 235; Thomson v. Maxwell, 2 Blatchf. 392.” And this is reiterated in substance by Mr. Justice Blatchford in Arthur v. Morgan, 112 U. S. 495, 501, where he said for the court: “ A" }, { "docid": "23509351", "title": "", "text": "nature and character, to the end that he might ascertain the precise facts and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated. Burgess v. Converse, 2 Curt. 223. “ Two objects, says Judge Curtis, were intended to be accomplished by the provision in the .act of Congress requiring such a protest: 1. To apprise the collector of the objections entertained by the importer, before it should be too late to remove them, if capable of being removed. 2. To hold the importer to the objections which he then contemplated, and on which he really acted, and prevent him, or others in his behalf, from seeking out defects in the proceedings, after the business should be closed, by the payment of the money into the Treasury. Warren v. Peaselee, 2 Curt. 235; Thomson v. Maxwell, 2 Blatchf. 392.” And this is reiterated in substance by Mr. Justice Blatchford in Arthur v. Morgan, 112 U. S. 495, 501, where he said for the court: “ A protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure.”- That was the case of the importation of a carriage, claimed in the protest to be “ personal effects ” used by the owner “ over a year ” before importation, it being also stated that “ personal effects in actual use” were free from duty, whereas the carriage came under the head “household effects in use abroad not less-than one year.” Personal effects in actual use and household effects if used abroad not less than one year were alike exempt from duty, and as the error was plainly clerical and could not have misled the collector, the protest was held sufficient. In Heinze v. Arthur's Executors, 144 U. S. 28, 34, the goods were gloves made" }, { "docid": "23234900", "title": "", "text": "imposing the 20 per cent., the language of the protest fairly referred the collector to the 10 per cent. clause of section 2516. A protest is a commercial document, usually made in the hurry of business, entitled to a liberal interpretation, and not requiring technical precision, while at the same time it must show fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Swanston v. Morton, 1 Curt. C. C. 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Curt. C. C. 216. The ease of Steegman v. Maxwell, 3 Blatchf. C. C. 365, is nearer like the present case than any one I have been able to find. The plaintiffs imported articles known in commerce as “thread laces,” composed of linen and cotton. The collector exacted 25 per cent, duty on them as “cotton laces,” under Schedule D of the act of July 30, 1846, (9 St. at Large, 46.) “Thread laces” was named in Schedule E, which was a 20 per cent, schedule. The protest was against the payment of the 25 per cent., and claimed that the “thread laces” were liable to a duty of only 20 per cent. The court held that the protest was a notice to the collector, adequately distinct and specific, of the grounds of objection to the payment demanded, and satisfied the provisions of the statute. . The protest did not say that the ground was that the article was provided for by name as “thread laces,” in Schedule E, but it named the 20 per cent, and protested against the 25 per cent. Schedule E immediately followed Schedule D, in the same act. In the present ease the protest names the 10 per cent, and protests against the 20. The only suggestion against it is that it does not say that hay is not an article manufactured in whole or in part, and that it is a" }, { "docid": "4647592", "title": "", "text": "protest has been filed and denied, or in the case of American manufacturer’s actions, all administrative remedies have been exhausted. Section 514 of the Tariff Act of 1930, as amended by the Customs Courts Act of 1970, prescribes that a protest “shall be filed in writing with the appropriate customs officer * * * setting forth distinctly and specifically each decision described in subsection (a) as to which protest is made; each category of merchandise affected by each such decision as to which protest is made; and the nature of each objection and reasons therefor.” Prior to the amendment, said section provided that the protest must be in writing and set forth “distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto.” Under that section it has been held that the protest must show that the objection made at the trial was in the mind of thf party at the time the protest was made and was fairly brought to th< knowledge of the collector so that he might have an opportunity tc consider and pass upon the claim. American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335 (1946), and cases cited. A protest may not be amended so as to bring in merchandise not originally covered thereby, after the statutory period for filing a protest has run. United States v. Macksoud Importing Co. et al., 25 CCPA 44, T.D. 49041 (1937); United States v. Weigert-Dagen et al., 39 CCPA 58, C.A.D. 464 (1951). The books are replete with cases on the sufficiency of protests, the results reached depending on the language of the protest and the facts in each case. See, for example, Hudson Rissman v. United States, 46 Cust. Ct. 133, C.D. 2246 (1961), holding that a protest referring to figures did not cover vases; Border Brokerage Co., Inc. v. United States, 65 Cust. Ct. 600, C.D. 4145 (1970), holding that a protest referring to a “Mobile Spar Tree” did not include a “Yarder” which was imported at the same time; Clarence S. Holmes v." }, { "docid": "23450569", "title": "", "text": "the duties ■ as that taken at the trial, nor any other except the general objection already stated. Unless the ground? of objection to the payment of the duties are distinctly and specifically set forth in the protest it is plain that it cannot V held to be sufficient without a departure from the express requirement of the Act of Congress under which the suit was brought. ■ Iron in bars, as. well as hemp in bundles, is included in the entry, and yet' the protest is “ against the payment of the duty charged in the entry” without any discrimination as to the packages, and consequently applying as well to the iron as to the hemp, and to' the whole amount of the duties charged upon the entire importation. No pretence is now made that the duty charged upon the iron was illegal or excessive, and the plaintiff concedes that the hemp was subject to a duty of $25 per ton. Irrespective of authorities, therefore, it is impossible to hold that the protest in this case is sufficiently distinct and specific' to admit the objection to the payment set up at the trial. Numerous decisions have been made upon the subject,.but there is not one of them that affords the slightest support to the position that the protest in this case constitutes a compliance with the requirement of the Act of Congress. On the contrary, every one of-them affirms the rule that the importer must at least indicate in his protest distinctly arid definitely the source or ground of his complaint, and his design to make it the foundation of a claim against the Government.- Greeley's Adm. vs. Burgess et al., (18 How., 417); Swanton vs. Morton, (1 Cur., C. C., 294); Warren vs. Peasler, (2 Cur., C. C., 235); Thompson vs. Maxwell, (2 Blatch. C. C., 391)s. Persons importing merchandize are required to make their protests distinct and specific, to apprise the collectors of the customs of the nature of the objections made to the payment of the duties before it is too late to remove them or" }, { "docid": "22430911", "title": "", "text": "difference refunded. Lachaise, Fauché & Co.” Objection was made to these protests upon the ground that neither of them- distinctly and specifically set forth the ground or grounds of objection to the payment of the duties exacted on any of the importations mentioned therein, as required by the act of 1845. In Greely's Administrator v. Burgess, 18 Howard, 413, 416, the protest was objected to upon the ground that it -stated - only “ that the goods were not fairly and faithfully examined by the appraisers,” and the proof offered was, that the appraisers did not examine any of the original packages, and only saw samples which had been taken several weeks before, and which would not afford a true criterion by which to judge of the importation. Mr. Justice Campbell observed “This statute Was designed for practical use by men engaged in active commercial pursuits, and was intended to superinduce a prompt and amicable settlement of differences between the government and the importer. The officers of the government on the one part, and the importer or his agent on the other,- are brought into communication and intercourse by the act of entry of the import, and opportunities .for explanation easily occur for every difference that may arise. Wé are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute.- It is sufficient if the importer indicates distinctly -and definitely the source of his complaint, and his design.to make it the foundation for a claim against the government.” The protest was held to be sufficient. So, in Arthur v. Morgan 112 U. S. 495, it was held that a protest against paying a certain duty upon a carriage, which stated that the carriage was “ personal effects,” and had been' used over a year, and that, under the Revised Statutes, “personal effects in actual use” are free from duty, was sufficient, upon which the amount paid for duty could be recovered back on the ground that the carriage was free from duty as “household effects” under the" }, { "docid": "23234899", "title": "", "text": "20 per cent., which is the “greater rate of duties” referred to in the protest. The liquidation at 20 per cent, was under section 2516. No other provision of law than that section could possibly apply to hay. With section 2516 and the protest before him, the collector could not fail to understand from the protest that the rate of 10 per cent, claimed in it to be the proper duty was the rata of 10 per cent, named in section 2516. A mere protest against the payment of the duty exacted is not a compliance with the statute. This protest is not a mere protest against the duty charged. It is a protest against that, with the further statement that only 10 per cent, should have been charged on hay. Hay not being enumerated or provided for anywhere, if not in section 2516, and the 20 per cent, and the 10 per cent, being put in contrast both in the protest and in section 2516, and the collector having acted under section 2516 in imposing the 20 per cent., the language of the protest fairly referred the collector to the 10 per cent. clause of section 2516. A protest is a commercial document, usually made in the hurry of business, entitled to a liberal interpretation, and not requiring technical precision, while at the same time it must show fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Swanston v. Morton, 1 Curt. C. C. 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Curt. C. C. 216. The ease of Steegman v. Maxwell, 3 Blatchf. C. C. 365, is nearer like the present case than any one I have been able to find. The plaintiffs imported articles known in commerce as “thread laces,” composed of linen and cotton. The collector exacted 25 per cent, duty on them as “cotton laces,” under Schedule D of the" }, { "docid": "23258851", "title": "", "text": "that it could not possibly have misled the collector of customs in reviewing his decision in accordance with section 515 of said act. Worthy of note in this connection is the following statement of the Supreme Court of the United States in Arthur v. Morgan, 112 U. S. 495, 501— * * * A protest is not required to be made with technical precision, hut is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Converse v. Burgess, 18 How. 413; Swanston v. Morton, 1 Curtis, 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Id. 216; Steegman v. Maxwell, 3 Blatchford, 365; Frazee v. Moffitt, 20 Id. 267. *• * *. See also Carter v. United States, 1 Ct. Cust. Appls. 64, T. D. 31033, and cases therein cited. While the courts have not laid down any definitive line of demarcation between “machines” and “machinery,” the following quotations from the opinion of this court in Johnson Iron Works, Dry Dock & S. B. Co. v. United States, 48 Treas. Dec. 237, T. D. 41132, are worthy of note— “Machinery” is not synonymous with “machine.” Seavey v. Central Fire Ins. Co. (111 Mass. 540, 541); Fenson v. Bulman (17 Man. 307; 7 West L. R. 134, 137). The word “machinery” is of a much broader application and much more comprehensive and extensive. Worden-Allen Co. v. Milwaukee (171 Wis. 124; 176 N. W. 877, 878, and other cases cited in vol. 38, p. 330, Corpus Juris). The word “machinery” includes appurtenances necessary to the working of a machine. Bache v. Central Coal, etc., Co. (127 Ark. 397; 192 S. W. 225, 227, and other cases cited in said volume). Likewise in volume 3, page 204, Second Series of Words and Phrases, we find the following: According to Webster’s International Dictionary a “machine” is any mechanical contrivance, while “machinery” is the means and appliances" }, { "docid": "7219787", "title": "", "text": "that he might then ascertain the precise facts and have adequate opportunity to correct mistakes and cure defects. Heinze v. Arthur’s Executors, 144 U. S. 28, 34; Schell’s Executors v. Fauché, 138 U. S. 562; Arthur v. Morgan, 112 U. S. 495, 501; Arthur v. Dodge, 101 U. S. 34, 37; Greely’s Administrator v. Burgess, 18 How. 413, 416. But no special form is required. “A. protest which indicates to an intelligent man the ground of the importer’s objection to the duty levied upon the articles should not be discarded because of the brevity with which the objection is stated.” Schell’s Executors v. Fauché, supra. “We are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute. It is sufficient if the importer indicates distinctly and definitely the source of his complaint, and his design to make it the foundation for a claim against the government.” Greely’s Administrator v. Burgess, supra. Does a claim in a protest under a particular paragraph, with.no more, adequatély indicate to the collector that the importer intends to claim the article imported may come under thq specified paragraph either directly, or by resemblance to articles therein described? In Arthur v. Fox, 108 U. S. 125, this court said: '“ If an article is found not enumerated in the tariff laws, then the first inquiry is whether it ‘ bears a similitude, éither in ipaterial, quality, texture, or use to which it may be applied, to any article enumerated ... as chargeable as with duty.’ If it does, and the similitude is substantial, then, in the language of the court in Stuart v. Maxwell [16 How. 150] * it is to be deemed the same, and to be charged accordingly.’ In other words, although not specifically enumerated, it is provided for under the name of the article it most resembles.” The part of paragraph 386 under consideration, prescribes a rule of construction applicable to every paragraph of the tariff, imposing duty on specifically described articles. If is a general provision intended to enlarge" }, { "docid": "22849636", "title": "", "text": "objection, and to expose the United States to the risk of litigation.” Curtis's Administratrix v. Fiedler, 2 Black, 461. “ The object of the requirement is to prevent a party, if he suffers a mistake or oversight to pass without notice, from taking advantage of it when it is too late to make the correction, and to’ compel him to disclose the grounds of his objection at the time when he makes his protest. . . . Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that' the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated.” Davies v. Arthur, 96 U. S. 148. “ A protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterwards made at'the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the Government the practical advantage which the statute was designed to secure.” Arthur v. Morgan, 112 U. S. 495. “ A protest which indicates to an intelligent man the ground of the importer’s objection to the duties levied upon the articles should not be discarded because of the brevity with which the objection is stated.” Schell's Executors v. Fauché, 138 U. S. 562 ; Heinze v. Arthur's Ex'rs, 144 U. S. 28. In Herrman v. Robertson, 152 U. S. 521, a protest was held insufficient, in that it failed to point out, or suggest in any way, the provision ’which actually controlled, and in effect only raised a question which of two clauses, under one or the other of 'which it was assumed that the. importation came, should govern as most applicable. Under these and other Authorities" }, { "docid": "23509352", "title": "", "text": "protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure.”- That was the case of the importation of a carriage, claimed in the protest to be “ personal effects ” used by the owner “ over a year ” before importation, it being also stated that “ personal effects in actual use” were free from duty, whereas the carriage came under the head “household effects in use abroad not less-than one year.” Personal effects in actual use and household effects if used abroad not less than one year were alike exempt from duty, and as the error was plainly clerical and could not have misled the collector, the protest was held sufficient. In Heinze v. Arthur's Executors, 144 U. S. 28, 34, the goods were gloves made on frames and composed of cotton and silk, .in which cotton was the component part of chief value, and ivere dutiable at thirty-five per cent ad valorem, less ten per cent, as gloves made on frames of whatever material composed. The collector rated them at sixty per cent ad valorem as “ ready-made clothing of silk, or of which silk shall be a component material of chief value,” or “ silk gloves.” The protest specifically stated that the goods were “ partly cotton gloves mixed with silk,” and “composed of cotton and silk, cotton, 'chief part, the duty of 60 per cent being only legal where silk is the chief part,” and that the gloves were liable to a duty of only thirty-five per cent, less ten per cent. The objection was that the protest did not state that the gloves were made on frames, and this court held, again speaking through Mr. Justice Blatchford, that: “It is entirely immaterial that the protest did not specify that the gloves were made on frames. It was" }, { "docid": "22062594", "title": "", "text": "to consider any further the construction of the words “ other personal effects,” in-clause 3, because we place our decision on the ground that this carriage was “ household effects ” of the plaintiff. The protest claimed that the carriage was “ personal effects ” in actual use, under § 2505, and, as such, free and not subject to the duty imposed on it, but did not claim it to be “ household effects.” The solicitor-generaFconcedes that the objection to the protest is a “ bare technicality,” and that its language could hardly mislead the officers. A proper protest, as well as an appeal, are prerequisites to the right to sue. § 3011 Rev. Stat., as amended by the act of February 27, 1877, ch. 69, 19 Stat. 247. The protest must set forth “ distinctly and specifically ” the grounds of objection to the decision of the collector as to the rate and amount of duties. § 2931 Rev. Stat. This provision was taken from the act of June 30,1864, ch. 171, § 14, 13 Stat. 214, and is substantially the same as 'that in the act of February 26, 1845, ch.- 22, 5 Id. 727. A protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection; afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Converse v. Burgees, 18 How. 413; Swanston v. Morton, 1 Curtis, 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Id. 216; Steegman v. Maxwell, 3 Blatchford, 365; Frazee v. Moffitt, 20 Id. 267. This protest apprised the collector that the carriage Was claimed to be free,.under § 2505, as a carriage actually used abroad over a year. The “household effects” clause was in the mind of the party and the collector could not fail to so understand. The protest was sufficient. The judgment of the Circuit Court is affirmed." }, { "docid": "20801437", "title": "", "text": "filed and denied, or in the case of American manufacturer’s actions, all administrative remedies have been exhausted. Section 514 of the Tariff Act of 1930, as amended by the Customs Courts Act of 1970, prescribes that a protest “shall be filed in writing with the appropriate customs officer * * * setting forth distinctly and specifically each decision described in subsection (a) of this section as to which protest is made; each category of merchandise affected by each such decision as to which protest is made; and the nature of each objection and reasons therefor.” Prior to the amendment, said section provided that the protest must be in writing and set forth “distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto.” Under that section it has been held that the protest must show that the objection made at the trial was in the mind of the party at the time the protest was made and was fairly brought to the knowledge of the collector so that he might have an opportunity to consider and pass upon the claim. American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335 (1946), and cases cited. A protest may not be amended so as to bring in merchandise not originally covered thereby, after the statutory period for filing a protest has run. United States v. Macksoud Importing Co. et al., 25 CCPA 44, T.D. 49041 (1937); United States v. Weigert-Dagen et al., 39 CCPA 58, C.A.D. 464 (1951). The books are replete with cases on the sufficiency of protests, the results reached depending on the language of the protest and the facts in each case. See, for example, Hudson Rissman v. United States, 46 Cust.Ct. 133, C.D. 2246 (1961), holding that a protest referring to figures did not cover vases; Border Brokerage Co., Inc. v. United States, 65 Cust.Ct. 600, C.D. 4145 (1970), holding that a protest referring to a “Mobile Spar Tree” did not include a “Yarder” which was; imported at the same time; Clarence S. Holmes v. United States," }, { "docid": "7219786", "title": "", "text": "mentioned a special paragraph without more, although the article imported could only be brought under the paragraph by virtue of a similitude paragraph. The Court of Customs Appeals, in the judgment here under review, followed the Snellenburg Case and sustained, the protest, one member of the court dissenting. It is because of this somewhat exceptional contrariety of opinion existing among General Appraisers, Circuit Courts of Appeals and Judges of the Court of Customs Appeals, that this court has granted a certiorari herein. The protest and similitude clauses have appeared in all tariff acts since 1842 in substantially the same form as in paragraph N and paragraph 386 of the Tariff Act of 1913, so that the authorities construing other tariff acts have application to the present question. A protest must be distinct and specific enough to show that the objection taken at the hearing or trial was at the time of filing the protest in the mind of the importer and sufficient to notify, the collector of its true nature and character to the end that he might then ascertain the precise facts and have adequate opportunity to correct mistakes and cure defects. Heinze v. Arthur’s Executors, 144 U. S. 28, 34; Schell’s Executors v. Fauché, 138 U. S. 562; Arthur v. Morgan, 112 U. S. 495, 501; Arthur v. Dodge, 101 U. S. 34, 37; Greely’s Administrator v. Burgess, 18 How. 413, 416. But no special form is required. “A. protest which indicates to an intelligent man the ground of the importer’s objection to the duty levied upon the articles should not be discarded because of the brevity with which the objection is stated.” Schell’s Executors v. Fauché, supra. “We are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute. It is sufficient if the importer indicates distinctly and definitely the source of his complaint, and his design to make it the foundation for a claim against the government.” Greely’s Administrator v. Burgess, supra. Does a claim in a protest under a particular paragraph, with.no" }, { "docid": "22849635", "title": "", "text": "239, Avhich dealt Avith the subject, namely paragraphs 318 and 319, and under either of them the duty, was that claimed- by the importer, two cents per pound. The conclusion thus- reached is consistent with the authorities to which our- attention has been called in the. briefs of the respective parties: ' “ We are not disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this -statute. It'is sufficient if the importer-indicates distinctly and definitely the source of his complaint and his design to make it the foundation for a claim against the government.” Greely's Administrator v. Burgess, 18 How. 413. “Persons importing merchandise are required to make their protests distinct and specific, in order to apprise the collector of the nature of the objection, before it is too late to remove it, or to modify the exaction, and that tlie proper officers of the Treasury may know what they have to meet, in case they decide to exact the duties as intimated, Notwithstanding the objection, and to expose the United States to the risk of litigation.” Curtis's Administratrix v. Fiedler, 2 Black, 461. “ The object of the requirement is to prevent a party, if he suffers a mistake or oversight to pass without notice, from taking advantage of it when it is too late to make the correction, and to’ compel him to disclose the grounds of his objection at the time when he makes his protest. . . . Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that' the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated.” Davies v. Arthur, 96 U. S. 148. “ A protest is not required to be made" }, { "docid": "23258850", "title": "", "text": "essential and integral parts of a printing machine. United States v. J. E. Bernard & Co., Inc. 28 C. C. P. A. 182, C. A. D. 142; Liberty Lace & Netting Works v. United States, C. D. 968; Johnson Iron Works, Dry Dock & S. B. Co. v. United States, 48 Treas. Dec. 237, T. D. 41132. The Government does not seriously challenge the alternative claim of plaintiff that the imported articles are parts of printing machinery but rests mainly upon the tenuous contention that the claim in the protest that the articles are dutiable as parts of “printing machines” was not sufficient to indicate to the collector of customs that the plaintiff was really alleging that the articles are parts of “printing machinery.” It is true that “printing machines” are not mentioned in paragraph 372, but that fact renders the claim of plaintiff all the more obvious. We consider plaintiff’s claim under paragraph 372, supra, to be sufficiently distinct and clear as to meet the requirements of section 514, Tariff Act of 1930, and that it could not possibly have misled the collector of customs in reviewing his decision in accordance with section 515 of said act. Worthy of note in this connection is the following statement of the Supreme Court of the United States in Arthur v. Morgan, 112 U. S. 495, 501— * * * A protest is not required to be made with technical precision, hut is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Converse v. Burgess, 18 How. 413; Swanston v. Morton, 1 Curtis, 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Id. 216; Steegman v. Maxwell, 3 Blatchford, 365; Frazee v. Moffitt, 20 Id. 267. *• * *. See also Carter v. United States, 1 Ct. Cust. Appls. 64, T. D. 31033, and cases therein cited. While the courts have not laid down" }, { "docid": "22849637", "title": "", "text": "with technical precision, but is sufficient if it shows fairly that the objection afterwards made at'the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the Government the practical advantage which the statute was designed to secure.” Arthur v. Morgan, 112 U. S. 495. “ A protest which indicates to an intelligent man the ground of the importer’s objection to the duties levied upon the articles should not be discarded because of the brevity with which the objection is stated.” Schell's Executors v. Fauché, 138 U. S. 562 ; Heinze v. Arthur's Ex'rs, 144 U. S. 28. In Herrman v. Robertson, 152 U. S. 521, a protest was held insufficient, in that it failed to point out, or suggest in any way, the provision ’which actually controlled, and in effect only raised a question which of two clauses, under one or the other of 'which it was assumed that the. importation came, should govern as most applicable. Under these and other Authorities which we have examined, we conclude that the notice was sufficient, and accordingly answer the question certified to us by the Circuit Court of Appeals in the affirmative, and it is so ordered." }, { "docid": "9347776", "title": "", "text": "jurisdiction over Saab’s claims. As the CIT itself pointed out, “a prerequisite to [CIT] jurisdiction ... is the denial of a valid protest.” Saab I, 276 F.Supp.2d at 1326. See also Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed.Cir.1999). The government argues that Saab’s protests were invalid because they were not “filed in compliance with all statutes and regulations.” Specifically, the government alleges that Saab’s protests fail to satisfy the requirements of 19 C.F.R. § 174.13(a)(5) and (6), which provide that a protest shall contain a “specific description of the merchandise affected,” and the “nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal.” The government points to what it regards as two critical deficiencies in Saab’s protests: (1) their failure to specify the damage suffered by the vehicles at issue beyond the general description “latent defects”; ' and (2) their inclusion, in the attachments identifying the vehicles governed by each protest, of entries for “both defective and non-defective vehicles.” The government cites a series of eases supporting its view that these deficiencies are fatal to the validity of Saab’s protests. See, e.g., Davies v. Arthur, 96 U.S. 148, 151, 24 L.Ed. 758 (1877) (stating that although “[technical precision is not required ... the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and ... sufficient to notify the collector of its true nature and character”). Saab responds that its protests were sufficiently detailed to vest the CIT with jurisdiction, citing for its position a series of cases in this court and its predecessors stating that to vest jurisdiction, a protest need only “be sufficiently distinct and specific to enable the Customs* Service to know what is in the mind of the protestant.” Computime, Inc. v. United States, 772 F.2d 874, 879 (Fed.Cir.1985) (quotations omitted); see also Mattel, Inc. v. United States, 72 Cust.Ct. 257, 377 F.Supp. 955, 960 (1974) (“However cryptic, inartistic, or" }, { "docid": "14596968", "title": "", "text": "made. Defendant’s participation with plaintiff in a stipulation of facts and subsequent submission of the case for disposition on the merits constitutes an implied waiver of any defects in the protest, and is, in effect, a consent that the case be decided on the merits. Langfelder, Homma & Hayward, Inc. v. United States, 2 Cust. Ct. 525, Abstract 40344. Apart from the question of waiver, we think the protest is legally sufficient. A protest need not be made with technical precision. It is sufficient if the importer indicates distinctly and definitely the source of his complaint and his design to make it the foundation for a claim against the Government. Greeley's Administrator v. Burgess (Converse v. Burgess), 59 U.S. 413. If it fairly and accurately apprises the collector of the objection which is raised against his action, so that he may have an opportunity to reconsider, a protest is legally sufficient. Arthur v. Morgan, 112 U.S. 495. The instant protest assigns as the reason for the importer’s grievance the collector’s refusal to reliquidate the subject entry for clerical error, as demanded by the importer, giving both the date of the collector’s refusal and the date of the demand. Details of the nature of the alleged clerical error are not set forth in the above-noted portion of the protest. However, the details are set forth in the written demand previously given to the collector under date of April 2, 1952, and incorporated in the protest by reference. This demand is part of the official papers which were received in evidence pursuant to the stipulation. The pertinent part of the demand reads as follows: Sir: We refer to the following entry: F-69 Entry No.: Shell Oil Co. In the name of: May 4,1951 Date of Entry: Paladina Vessel: July 19,1951 Increase Liquidated: It appears that by reason of a clerical error, this entry was inadvertently liquidated prior to receipt of the letter dated August 16th from the Bureau of Customs, file 343.3. The merchandise consists of fuel oil imported from Curacao, N.W.I. and it was clearly the intent of the Bureau of" } ]

[ { "docid": "12867914", "title": "", "text": "of conflicting federal law, it “provides the exclusive civil procedures for the United States to ... recover a judgment on a debt.” 28 U.S.C. § 3001. “Debt” includes “an amount that is owing to the United States on account of ... restitution....” 28 U.S.C. § 3002(3)(B); see also United States v. Mays, 430 F.3d 963, 965 (9th Cir.2005) (concluding that the FDCPA’s civil enforcement remedies may be used to enforce orders of restitution entered under the MVRA ). The FDCPA further provides that it “shall preempt State law to the extent such law is inconsistent.” 28 U.S.C. § 3003(d). Contrary to Gianelli’s argument, the California state law at issue, California Civil Procedure Code section 683.020 (1987), which would preclude enforcement of a restitution judgment after ten years from the entry of that judgment, is such an inconsistent state law and is, therefore, preempted. The FDCPA provides no time limit for the collection of debts by writ of execution. See 28 U.S.C. § 3203. Further, because the purpose of the FDCPA “is to create a comprehensive statutory framework for the collection of debts owed to the United States government [and to] improve the efficiency and speed in collecting those debts,” H.R.Rep. No. 101-736, at 32 (1990), a state law limiting such collection is inconsistent with the purpose of the act and is, therefore, preempted. See Mays, 430 F.3d at 965 (noting that the “FDCPA was enacted ‘to give the Justice Department uniform Federal procedures— prejudgment remedies and postjudgment remedies — to collect debts owed the United States nationwide.’ ”) (quoting H.R.Rep. No. 103-883, at 81 (1995)). Although not binding upon us, the reasoning of United States v. Pierce, 231 B.R. 890, 893 (E.D.N.C.1998) supports our conclusion. In Pierce, the district court rejected the argument that where the government proceeded to enforce a judgment under the FDCPA, Federal Rule of Civil Procedure 69(a)(1) incorporated a state law limitation prohibiting enforcement after ten years. Id. That court reasoned that, in light of the legislative history underlying the FDCPA and the language of the statute itself, binding the federal government to state law limitations" } ]

[ { "docid": "717196", "title": "", "text": "of the judgment and allowable costs. Id. Moreover, any person who fails to obey a citation may be punished for contempt. Id.; III. S.Ct. R. 277(h). The prohibition is in place to account for and preserve the judgment debt- or’s assets until the court decides whether those assets should be used to pay down the judgment. City of Chicago v. Air Auto Leasing Co., 297 Ill.App.3d 873, 880, 697 N.E.2d 788, 792, 232 Ill.Dec. 46 (App.Ct.1998). The prohibition in a third-party citation is not an injunction, but merely serves to warn the third-party citee of possible sanctions he may incur if he transfers the judgment debtor’s non-exempt assets prior to the citation court ruling on whether those assets should be applied to the judgment. Bank of Aspen v. Fox Cartage, Inc., 126 Ill.2d 307, 314, 533 N.E.2d 1080, 1083, 127 Ill.Dec. 952 (1989); see also Cacok v. Covington, 111 F.3d 52, 54 (7th Cir.1997). In Bank of Aspen, the Illinois Supreme Court observed that given the language of section 2-1402, if a “third-party respondent deliberately puts the property beyond the reach and in violation of the citation without color of legitimate claim, contempt may be the appropriate punishment.” Id. at 1086. The purpose of the contempt sanction is to punish, not to compel compliance. Id. If contempt is not shown, the relief against the third-party citee who has violated the prohibition against transfer is limited to the judgment remedy. Id. In deciding whether to enter judgment against or hold a third-party citee in contempt, the court as a threshold matter, should determine whether the commencement of the supplementary proceeding via the issuance of the citation was proper. In this regard, Illinois Supreme Court Rule 277 provides that a supplementary proceeding may be commenced at any time “with respect to a judgment which is subject to enforcement.” Bank of Matteson v. Brown, 283 Ill.App.3d 599, 669 N.E.2d 1351, 1352, 218 Ill.Dec. 825 (App.Ct.1996)(quoting Ill. S.Ct. R. 277). Supplementary proceedings are therefore “unavailable to creditors until after a judgment capable of enforcement has first been entered in their favor.” Id. (citing State" }, { "docid": "11121051", "title": "", "text": "rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the respondent’s first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in effect notwithstanding the termination of the proceedings until the judgment is satisfied or the court orders otherwise. (Emphasis added.) MAT Leasing contends that this “automatic termination” provision is jurisdictional, and that the district court therefore lost its authority to hear the case when it allowed more than six months to elapse between Tadin’s first appearance (on behalf of MAT Leasing) on December 13, 2004, and its ruling on March 8, 2006. Rule 277, in MAT Leasing’s view, requires us to find that the district court’s jurisdiction “expired” on June 13, 2005, six months after Tadin initially appeared. The Funds and MB Financial respond that Rule 277 is nothing more than a procedural mechanism by which post-judgment collection proceedings can terminate if they take too long and result in prejudice to or harassment of the judgment debtor. See TM Ryan Co. v. 5350 S. Shore, LLC, 361 Ill.App.3d 352, 297 Ill.Dec. 72, 836 N.E.2d 803, 810 (2005). MAT Leasing has no support for its strict jurisdictional theory. It has not shown us a single instance in which a state rule of procedure has been permitted to divest a federal court of subject-matter jurisdiction, and there is certainly nothing in Fed.R.Civ.P. 69(a) that would support such an outcome. See Fed.R.CivP. 82 (rules “do not extend or limit the jurisdiction of the district courts”); 28 U.S.C. § 2072. The district court’s subject-matter jurisdiction was based on the federal-question statute, 28 U.S.C. § 1331; the federal questions before the court arose under the Employee Retirement Income Security Act (“ERISA”), in particular the provisions that entitled the Funds to their contributions. See 29 U.S.C. §§ 1132(e)(1)," }, { "docid": "7902110", "title": "", "text": "present action, “we are required to apply the substantive law of the forum state ... as we believe the highest court of the state would apply it.” Wolverine Mut. Ins. v. Vance ex rel. Tinsley, 325 F.3d 939, 942 (7th Cir.2003); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Therefore, we are required to apply the substantive law of Illinois that governs citation actions to discover assets. At the same time, we must apply federal procedural law to this case. See Erie, 304 U.S. at 78, 58 S.Ct. 817; Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir.2008). Although formally titled as a citation action to discover assets, this case is, at bottom, an enforcement action to collect a money judgment. Fed.R.Civ.P. 69(a)(1), which governs the enforcement of money judgments in federal court, provides that the “procedure on execution — and in proceedings supplementary to and in aid of judgment or execution — must accord with the procedure of the state where the court is located.” Illinois is the state where the federal district court is located, so we look again to Illinois law for the procedural rights and processes accompanying a citation to discover assets. We endeavor to provide the same procedural rights and processes that the parties would enjoy in Illinois state court here in federal court; however, we need not “apply[ ] every jot and tittle of Illinois procedural law.” Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1226 (7th Cir.1993); see also Star Ins. Co. v. Risk Mktg. Grp. Inc., 561 F.3d 656, 661 (7th Cir.2009) (holding that a “district court was correct in turning to state law” because under Rule 69, “the Federal Rules of Civil Procedure are not strictly applicable to [Illinois] supplementary proceedings”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir.1995) (noting that Rule 69 “governs collection proceedings in the federal courts, [and] adopts whatever procedures are followed by the state courts in the state in which collection is sought”). Instead, our" }, { "docid": "19155187", "title": "", "text": "filed an appeal of that ruling, which was docketed as No. 13-2040. We conclude that the court erred by ordering turnover of the assets without first allowing for discovery and holding an evidentiary hearing. We therefore vacate the court’s turnover orders and remand for further proceedings. Sheth also has filed two more appeals from later related rulings. Those appeals have been docketed as Nos. 14-1824 and 14-1980, and consolidated with the first appeal. On remand, the district court also should address any properly raised issues related to those appeals. The government learned of Sheth’s fraud in 2006, when one of his colleagues brought a qui tarn suit against him under the False Claims Act, see 31 U.S.C. § 3730(b), and Illinois’s Whistle-blower Reward and Protection Act, see 740 ILCS § 175/4(b). The United States intervened in the suit and also initiated a criminal investigation. Sheth’s plea agreement lists the property subject to forfeiture and provides “that any payments made in satisfaction of the forfeiture judgment shall be credited to any outstanding restitution judgment.” Contemporaneously with Sheth’s sentencing in August 2010, a $20 million consent judgment in favor of the United States was entered in the civil suit. One of the terms of the civil settlement is that “[a]ny amounts paid to the United States as criminal restitution in the criminal case ... against Sheth shall be credited against the” $20 million civil judgment. Six months after Sheth’s sentencing, the government had not liquidated all of Sheth’s forfeited assets, and neither had the government distributed any proceeds of liquidated assets to the victims. Nonetheless, the government began post-judgment proceedings under the existing criminal docket number to discover other assets belonging to Sheth and to collect those assets in satisfaction of the restitution amount. See United States v. Lee, 659 F.3d 619, 620 (7th Cir.2011) (explaining that district courts may entertain post-judgment collection proceedings within underlying criminal case). The government elected to use state collection procedures, as permitted by federal law when collecting restitution. See 18 U.S.C. §§ 3664(m)(l)(A)(I), 3613(a), (f); United States v. Resnick, 594 F.3d 562, 565 (7th Cir.2010). It" }, { "docid": "18853281", "title": "", "text": "POSNER, Circuit Judge. This appeal presents questions concerning the procedure for collecting a money judgment entered by a federal court. Angelo Ruggiero had borrowed money from a savings and loan association that went broke and was taken over by the Resolution Trust Corporation. He failed to repay the loan and the RTC, as receiver of the failed S & L, brought suit in federal district court and obtained judgments against him for some $300,000, which this court has now affirmed. Resolution Trust Corp. v. Ruggiero, 977 F.2d 309 (7th Cir.1992). Ruggiero not having posted an appeal bond, the RTC initiated a postjudgment proceeding in the district court to collect its judgments without waiting for this court to decide the appeal. Rule 69(a) of the Federal Rules of Civil Procedure provides that the procedure for enforcing federal court judgments “shall be in accordance with the practice and procedure of the state in which the district court is held,” in this case Illinois, “except that any statute of the United States governs to the extent that it is applicable.” The relevant provisions of Illinois law — section 2-1402 of the Code of Civil Procedure, Ill.Rev.Stat. ch. 110, ¶ 2-1402, and Supreme Court Rule 277, Ill.Rev.Stat. ch. 110A, ¶ 277 — do various things: Entitle the judgment creditor to question the judgment debtor, or anyone else who might have relevant information, under oath regarding the existence and whereabouts of assets that might be used to satisfy the judgment; this inquiry is sometimes called a citation proceeding. Entitle any third party who claims an interest in those assets to appear and be heard on his claim. Empower the court to order the debtor to turn over property to the creditor to satisfy the judgment. The supplementary proceeding expires six months after the judgment debtor first appears for his citation examination, unless the time is extended by court order. The enactments we have cited do not further specify the procedural details of supplementary proceedings. Angelo Ruggiero claimed that the extensive real estate which the RTC believed he owned, and which appears to have an equity" }, { "docid": "23650070", "title": "", "text": "Local P-171, Amalgamated Meat Cutters and Butcher Workmen of N. Am. v. Thompson Farms Co., 642 F.2d 1065, 1073 (7th Cir.1981) (holding that a district court has the power to add a Rule 54(b) certification to an order nunc pro tunc after the filing of a premature notice of appeal). See also King v. Gibbs, 876 F.2d 1275, 1278 (7th Cir.1989). Once the district court properly dismissed the non-diverse parties, only those parties against whom judgment had already been entered remained in the case. The retroactive application of Rule 21 rendered the judgment final and enforceable against these remaining parties, and the court did not err in allowing the matter to proceed upon the citations that had already issued. C. Scope of a District Court’s Authority in Supplemental Proceedings Federal Rule of Civil Procedure 69(a) provides that “[t]he procedure on execution [of a money judgment] — and in proceedings supplementary to and in aid of judgment or execution — must accord with the procedure of the state where the court is located.” Fed.R.Civ.P. 69(a)(1). In Illinois, 735 ILCS 5/2-1402 and Illinois Supreme Court Rule 277 govern supplemental proceedings. Supplementary proceedings are post-judgment processes that support the judgment creditor in asset discovery and final satisfaction of judgment. Star Ins. Co. v. Risk Mktg. Group, Inc., 561 F.3d 656, 662-63 (7th Cir.2009). The applicable statute provides: [a] judgment creditor ... is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment, a deduction order or garnishment, and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment. 735 ILCS 5/2-1402(a). The service of a citation to discover assets initiates supplemental proceedings. Id.; see also Cacok v. Covington, 111 F.3d 52, 53 (7th Cir.1997). On appeal, the Rogan Children assert that the district court acted outside its authority in adjudicating the substantive property rights of third parties under equitable theories such as alter ego. They claim that an analysis of" }, { "docid": "17614950", "title": "", "text": "the creditor with a specialized discovery procedure to assist it in determining the existence and location of assets that might be seized and sold to satisfy the judgment debt; and (3) it provides a mechanism and forum for compelling turnover of non-exempt assets, so that they might be sold to satisfy the judgment debt. Illinois Supreme Court Rule 277(a) defines any citation proceeding under 735 Ill. Comp. Stat. 5/2-1402 as a “supplementary proceeding.” Ill.Sup.Ct.R. 277(a). That Rule limits supplementary proceedings to six months, although it permits such extensions “as justice may require:” A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the respondent’s first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in effect notwithstanding the termination of the proceedings until the judgment is satisfied or the court orders otherwise. Ill.Sup.Ct. R. 277(f). Although the judgment creditor may obtain an extension of the citation by appropriate motion, courts have the authority to extend it without motion by parties. West Bend Mut. Ins. Co. v. Belmont State Corp., 09 C 354, 2010 WL 5419061, at *5 (N.D.Ill. Dec. 23, 2010), aff'd, 712 F.3d 1030 (7th Cir.2013); see also Laborers’ Pension Fund v. Pavement Maint, Inc., 542 F.3d 189, 194-95 (7th Cir.2008). Moreover, after six months an automatic termination of the citation lien is not guaranteed, notwithstanding the language of § 5/2-1402. Burditt & Radzius, Chtd. v. Brown (In re Barone), 184 B.R. 747, 750 (N.D.Ill.1995) (holding that citation proceedings did not terminate automatically because the citation respondent failed to appear for either of the scheduled citations). Therefore, the continuation of a citation to discover assets is a flexible process. Illinois citations to discover assets have two unusual features that present special problems for judgment creditors in bankruptcy proceedings: First," }, { "docid": "11121050", "title": "", "text": "No. 06-2857; and we consolidated the two appeals for our review. II MAT Leasing offers three reasons for reversing the district court’s rulings. First, MAT Leasing argues that the district court “lost” its subject-matter jurisdiction over these post-judgment collection proceedings on June 13, 2005, because the Funds and MB Financial failed to comply with the requirements of Illinois Supreme Court Rule 277(f), which provides for “automatic termination” of collection proceedings after six months unless the trial court grants an extension. Second, assuming the district court was not divested of its subject-matter jurisdiction, MAT Leasing contends that the court erred in concluding that MAT Leasing owed any money to PMI. Lastly, MAT Leasing claims that even if it owed money to PMI, the district court clearly erred in its calculation of the amount. We address each argument in turn. A We first consider MAT Leasing’s argument that the district court lost its subject-matter jurisdiction in these post-judgment proceedings by operation of Illinois Supreme Court Rule 277(f), which provides: (f) When Proceeding Terminated. A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the respondent’s first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in effect notwithstanding the termination of the proceedings until the judgment is satisfied or the court orders otherwise. (Emphasis added.) MAT Leasing contends that this “automatic termination” provision is jurisdictional, and that the district court therefore lost its authority to hear the case when it allowed more than six months to elapse between Tadin’s first appearance (on behalf of MAT Leasing) on December 13, 2004, and its ruling on March 8, 2006. Rule 277, in MAT Leasing’s view, requires us to find that the district court’s jurisdiction “expired” on June 13, 2005, six months after Tadin initially" }, { "docid": "7902112", "title": "", "text": "principal objective under Rule 69 is to “conform[] collection proceedings to state law.” Star, 561 F.3d at 661 (quoting Matos v. Richard A. Nellis, Inc., 101 F.3d 1193, 1195 (7th Cir.1996)). With this framework in mind, we turn now to study both the substantive and procedural rights accorded the parties to an Illinois citation action to discover assets. Specifically, we seek to determine the procedural rights, the substantive rights, and the remedies to which parties to a citation action are entitled. Once we understand the specifics of an Illinois citation action, we will be in a better position to assess whether a third-party citation respondent like BMO Harris is properly classified as a defendant for purposes of federal removal law. Often referred to as “supplementary proceedings,” citations to discover assets are the “dominant procedure of the modern era” used in Illinois to enforce money judgments. Robert G. Markoff, Survey of Illinois Law: Enforcement of Judgments, 33 S. Ill. L.Rev. 631, 639-40 (Summer 2009). Two provisions of Illinois law govern citation actions. The first provision, 735 Ill. Comp. Stat. 5/2-1402, provides in part: A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement oí the judgment.... A supplementary proceeding shall be commenced by the service of a citation issued by the clerk. 735 Ill. Comp. Stat. 5/2-1402(a) (emphasis added). The second provision, Ill. Comp. Stat. S.Ct. R. 277, outlines the procedures of a citation action in more detail. It requires the party to whom the citation is directed, whether the judgment debtor or a third party, “to appear for examination ... concerning the property or income of or indebtedness due the judgment debtor.” Ill. Comp. Stat. S.Ct. R. 277(c)(3). The rule also allows the party bringing the citation action to demand that the judgment debtor or third party produce “any books, papers, or records in his or its possession or control" }, { "docid": "23650066", "title": "", "text": "we affirm the district court’s determination regarding subject matter jurisdiction. B. Finality of Judgment In Illinois, supplemental proceedings under § 2-1402 are not available to creditors “until after judgment capable of enforcement has first been entered in their favor.” Marble Emporium, Inc. v. Vuksanovic, 339 Ill.App.3d 84, 273 Ill.Dec. 915, 790 N.E.2d 57, 62 (2003) (citing cases discussing § 2-1402); see also Ill. Sup.Ct. R. 277(a) (“A supplemental proceeding authorized by section 2-1402 of the Code of Civil Procedure may be commenced at any time with respect to a judgment which is subject to enforcement.”); 735 ILCS 5/2— 1402(a). The Rogan Children argue that, when Dexia issued citations to discover assets in the supplemental proceedings, it held a non-final judgment and that the citations were therefore invalid. They submit that although the district court entered a final judgment nunc pro tunc after dismissing nondiverse parties under Federal Rule of Civil Procedure 21, the remainder of the proceedings was void because no new citations based on the final judgment were issued. In this appeal, the Rogan Children do not dispute that the district court’s dismissal of nondiverse parties was a proper exercise of its authority under Rule 21. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 & n. 6, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 380 (7th Cir.2000). We recently held, in a separate appeal filed by Judith Rogan challenging the district court’s issuance of a preliminary injunction in these same supplementary proceedings, that “the district court properly dismissed the nondiverse parties under [Rule] 21 and preserved its jurisdiction.” Dexia Credit Local v. Rogan, 602 F.3d 879, 883 (7th Cir.2010). On the claim that they do advance — that the dismissal of non-diverse parties was insufficient to retroactively render the May 2007 judgment final — we disagree. The Rogan Children make no attempt to explain what purpose would be served by requiring that the discovery citations be re-issued. Nor do they explain why it would be necessary. Rule 21 dismissals are retroactive, Newman-Green, 490 U.S. at 829, 109 S.Ct. 2218," }, { "docid": "19145363", "title": "", "text": "7056, summary judgment shall be granted whenever there is “no issue as to any actual fact and the moving party is entitled to judgment as a matter of law.” Fed. R.Bankr.P. 7056. ■ This rule incorporates Federal Rule of Civil Procedure 56. There is no general issue of material fact if “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, if the nonmoving party could not prevail on its version of the facts, a trial is unnecessary and summary judgment should be granted. Id. In this case, there is no dispute as’to the facts. The bankruptcy court, in deciding the questions of law, ruled in favor of the trustee. Under Rule 8013 of the Federal Rules of Bankruptcy Procedure, this court gives de novo review to questions of law. In re Newman, 903 F.2d 1150, 1152 (7th Cir.1990); Calder v. Camp Grove State Bank, 892 F.2d 629, 631 (7th Cir.1990). DISCUSSION Enforceability of Citation to Discover Assets The court turns first to the issue of whether the citation to discover assets was enforceable. Under Illinois Supreme Court Rule 277(a), which lays down the procedure for commencing supplementary proceedings under 735 ILCS 5/2-1402, see Bank of Matteson v. Brown, 283 Ill.App.3d 599, 218 Ill.Dec. 825, 827, 669 N.E.2d 1351, 1353 (1996) (citation omitted), “[a] supplementary proceeding ... may be commenced at any time with respect to a judgment which is subject to enforcement.” Ill.Sup.Ct.R. 277(a). By extension, a litigant may not begin supplementary proceedings under 735 ILCS 5/2-1402 until the time when the judgment is enforceable. Bank of Matteson, 669 N.E.2d at 1353, 218 Ill.Dec. at 827 (citations omitted).. 'When Dominick’s secured leave to serve an alias citation on September 25, 1992, there were pending motions for reconsideration and to vacate. While Dominick’s asserts that, despite these motions, the judgment was subject to enforcement, this argument is incorrect. According to 735 ILCS 5/2-1203(b), “a motion [to vacate] filed in" }, { "docid": "19155202", "title": "", "text": "kept the more than $10 million in proceeds from forfeited assets. Rather than being a reasonable reading of its plea agreement with Sheth, the government’s argument reads out of the agreement its unambiguous promise “that any payments made in satisfaction of the forfeiture judgment shall be credited to any outstanding restitution judgment” (emphasis added). Furthermore, the government’s contention that it could hold the forfeited funds indefinitely until all of Sheth’s other assets were collected is inconsistent with the right of victims to “full and timely restitution as provided by law.” 18 U.S.C. § 3771(a)(6) (emphasis added); see U.S. Dep’t of Justice, Attorney General Guidelines FOR Yiotim and Witness AsSISTANCE 42 (2011). Perhaps the government was worried that, if it did not seize Sheth’s other assets as quickly as possible, he would attempt to move them out of its reach. But this concern is easily addressed. The Illinois statute that the government used in its collection efforts empowers the judgment creditor and the court to prevent — by citation or injunction — a third party in possession of the judgment debtor’s assets “from making or allowing any transfer” or disposing of the assets. See 735 ILCS § 5/2— 1402(f). Thus, the assets can be frozen until further order of the court or the termination of the proceeding, whichever occurs first. The proceedings do terminate automatically, but the court can “grant extensions ... as justice may require.” III. S.Ct. R. 277(f). Therefore, once the government initiated supplementary proceedings, it easily could have ensured that Sheth’s assets stayed put. The government also argues that, for purposes of determining the balance due on Sheth’s restitution judgment, the value of Sheth’s unliquidated forfeited assets is irrelevant. The government relies on United States v. Robers, 698 F.3d 937 (7th Cir.2012), aff'd, — U.S. -, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014), in which a defendant argued that the sentencing court was required to reduce the amount of his criminal restitution order by the fair market value of real estate collateral that he had given to the victims. Id. at 939. We rejected that argument, stating that" }, { "docid": "11121054", "title": "", "text": "14 L.Ed. 660 (1853); Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 798-99 (7th Cir.1980). Further undermining MAT Leasing’s position that Rule 277(f) sets a jurisdictional, rather than procedural, requirement is the way in which it has been applied by Illinois and federal courts. Courts have adopted a flexible approach to the rule. See Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425, 431 (1968). Since the rule does not affect the federal court’s jurisdiction, its benefits could be forfeited or waived. Here, MAT Leasing has at least forfeited any complaint based on failure to comply with the rule, because it failed to present this argument to the district court. We might even find that MAT Leasing implicitly waived the point entirely by continuing its active participation in the district court proceedings long after the asserted “expiration date” of June 13, 2005. Even if we were inclined to overlook MAT Leasing’s forfeiture, it would still lose, because Illinois courts do not apply Rule 277 in the rigid way MAT Leasing has advocated. Illinois courts are unwilling to terminate proceedings under this provision where the “extension[s] complained of’ were entered at the parties’ agreement or at the request of the party currently challenging the court’s authority, or where the extensions did not lead to harassment of the complaining party. See, e.g., Nat’l Bank of Albany Park v. Newberg, 7 Ill.App.3d 859, 289 N.E.2d 197, 201 (1972). It is significant that the expiration date that MAT Leasing advocates occurred after MAT Leasing had itself caused, requested, or agreed to multiple continuances and delays in the proceedings. It is odd, at best, that MAT Leasing is trying to benefit from more than six months’ delay in the resolution of this case, when much of that delay resulted from its own requests for or acquiescence in more time. There is no evidence that MAT Leasing has suffered any prejudice, harassment, or injustice as a result of the delays. The company was afforded ample opportunity to be heard and never challenged the length of time involved until after filing this appeal. Following either" }, { "docid": "7902111", "title": "", "text": "with the procedure of the state where the court is located.” Illinois is the state where the federal district court is located, so we look again to Illinois law for the procedural rights and processes accompanying a citation to discover assets. We endeavor to provide the same procedural rights and processes that the parties would enjoy in Illinois state court here in federal court; however, we need not “apply[ ] every jot and tittle of Illinois procedural law.” Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1226 (7th Cir.1993); see also Star Ins. Co. v. Risk Mktg. Grp. Inc., 561 F.3d 656, 661 (7th Cir.2009) (holding that a “district court was correct in turning to state law” because under Rule 69, “the Federal Rules of Civil Procedure are not strictly applicable to [Illinois] supplementary proceedings”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir.1995) (noting that Rule 69 “governs collection proceedings in the federal courts, [and] adopts whatever procedures are followed by the state courts in the state in which collection is sought”). Instead, our principal objective under Rule 69 is to “conform[] collection proceedings to state law.” Star, 561 F.3d at 661 (quoting Matos v. Richard A. Nellis, Inc., 101 F.3d 1193, 1195 (7th Cir.1996)). With this framework in mind, we turn now to study both the substantive and procedural rights accorded the parties to an Illinois citation action to discover assets. Specifically, we seek to determine the procedural rights, the substantive rights, and the remedies to which parties to a citation action are entitled. Once we understand the specifics of an Illinois citation action, we will be in a better position to assess whether a third-party citation respondent like BMO Harris is properly classified as a defendant for purposes of federal removal law. Often referred to as “supplementary proceedings,” citations to discover assets are the “dominant procedure of the modern era” used in Illinois to enforce money judgments. Robert G. Markoff, Survey of Illinois Law: Enforcement of Judgments, 33 S. Ill. L.Rev. 631, 639-40 (Summer 2009). Two provisions of Illinois law govern citation actions. The first provision, 735" }, { "docid": "23245314", "title": "", "text": "is punishable by contempt and may subject the party to a judgment for the amount unpaid. In this appeal, Sarah asserts that the issuance of a citation to discover assets is a form of general discovery and is tanta mount to a deposition subpoena. Consequently, Sarah argues that the discovery provisions of the Federal Rules of Civil Procedure pre-empt state law on this subject in accordance with FRCP Rule 69(a). The federal rule governing deposition subpoenas states, “a non-resident of the district may be required to attend only in the county wherein he is served with a subpoena or within 40 miles from the place of service or at such other convenient place as is fixed by an order of the court.” Fed.R.Civ.P. 45(d)(2). In the absence of a court order fixing Chicago as a “convenient place” for her deposition, Sarah claims that the Illinois district court had no authority to issue a citation requiring her to appear in Chicago. Thus, Sarah concludes that the citation was without legal effect and could not give the district court personal jurisdiction over her. We find Sarah’s argument unpersuasive. FRCP Rule 69(a) subordinates state supplementary procedure only when there is a federal statute fulfilling a comparable function. Hartmann v. United States, 79 F.R.D. 705 (E.D.Wis.1978); Mission Bay Campland, Inc. v. Sumner Financial Corp., 71 F.R.D. 432 (M.D.Fla.1976). The citation procedure set forth under Illinois law contemplates more than merely the discovery of the assets of the judgment debtor. The statute also provides that the judgment creditor is “entitled to . . . compel the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment or decree.” Ill.Rev.Stat. ch. 110, § 73 (1979). See also Cochran v. Howell, 46 Ill.App.2d 304, 197 N.E.2d 87 (1964); Hamilton v. Country Club Properties, 320 Ill.App. 688, 51 N.E.2d 1008 (1943). This additional remedial aspect distinguishes the citation procedure from a general discovery proceeding and suggests that Sarah’s characterization of the citation as a deposition subpoena is inaccurate. We believe that a citation to discover assets is more appropriately considered a" }, { "docid": "11121053", "title": "", "text": "1145, and 185(a). The district court had ancillary jurisdiction over the post-judgment proceedings, and Fed. R.Civ.P. 69(a) directed it to state law for the mechanics of the collection process. State rules of procedure cannot negate subject-matter jurisdiction arising from a federal statute and federal question. Although we could stop there, we add that MAT Leasing’s assertion that Rule 277(f) somehow caused the district court to lose its subject-matter jurisdiction ignores the well established principle that “jurisdiction is determined by the facts that exist when the suit is filed.” Olympia Express, Inc. v. Linee Aeree Italiane, S.P.A., 509 F.3d 347, 349 (7th Cir.2007) (citing Dole Food Co. v. Patrickson, 538 U.S. 468, 478, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003)). As Olympia Express explained, “jurisdiction usually refers to a court’s authority to entertain a case, rather than to procedural incidents.” Id. at 350. If jurisdiction exists at the outset of a suit, subsequent procedural events will not divest the court of that original jurisdiction. See, e.g., Kanouse v. Martin, 56 U.S. 198, 208, 15 How. 198, 14 L.Ed. 660 (1853); Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 798-99 (7th Cir.1980). Further undermining MAT Leasing’s position that Rule 277(f) sets a jurisdictional, rather than procedural, requirement is the way in which it has been applied by Illinois and federal courts. Courts have adopted a flexible approach to the rule. See Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425, 431 (1968). Since the rule does not affect the federal court’s jurisdiction, its benefits could be forfeited or waived. Here, MAT Leasing has at least forfeited any complaint based on failure to comply with the rule, because it failed to present this argument to the district court. We might even find that MAT Leasing implicitly waived the point entirely by continuing its active participation in the district court proceedings long after the asserted “expiration date” of June 13, 2005. Even if we were inclined to overlook MAT Leasing’s forfeiture, it would still lose, because Illinois courts do not apply Rule 277 in the rigid way MAT Leasing has advocated. Illinois" }, { "docid": "18853299", "title": "", "text": "time. (We can find no cases so holding, but it seems obvious that a litigant should not be permitted to gain an advantage from a sanctionable filing.) Nor, as we have been at pains to insist, are the federal rules of civil procedure strictly applicable to supplementary proceedings. Even on appeal the Ruggieros have not indicated what factual errors the RTC’s petition contained. So even if, as we do not believe, they were surprised by the speed with which Judge Shadur ruled on the petition, they were not prejudiced. Only two more issues need be discussed. The first is whether any part of Judge Shadur’s order is invalid because the order was issued more than six months after Angelo Ruggiero first appeared for his citation examination, no order extending it having been issued. We think not. The oral ruling which the written order memorialized was made several days before the six-month deadline expired. This timetable establishes, at the least, substantial compliance with the statute, and under Illinois law no more is required. National Bank v. Newberg, 7 Ill.App.3d 859, 289 N.E.2d 197, 201 (1972); Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425, 432 (1968); see also Arnold v. BLaST Intermediate Unit 17, 843 F.2d 122, 125 (3d Cir.1988); 12 Wright & Miller, supra, § 3012 at p. 69. The citation examinations had repeatedly to be delayed because of Angelo Ruggiero’s contumacious conduct, and these delays could be thought of as continuances extending the six-month period, as the statute permits. Moreover, since the deadline is intended not only to prevent property from being encumbered by judgment liens indefinitely, King v. Ionization International, Inc., supra, 825 F.2d at 11184-85, but also to protect the judgment debtor from being harassed by his creditors, Kirchheimer Bros. Co. v. Jewelry Mine, Ltd., 100 Ill.App.3d 360, 55 Ill.Dec. 785, 789, 426 N.E.2d 1110, 1114 (1981); National Bank v. Newberg, supra, 289 N.E.2d at 201; cf. Federal Loan Corp. v. Harris, 17 Ill.App.3d 49, 308 N.E.2d 125, 127 (1974), a debtor who by his own actions delays the citation proceeding should be es-topped to plead the" }, { "docid": "19155188", "title": "", "text": "Sheth’s sentencing in August 2010, a $20 million consent judgment in favor of the United States was entered in the civil suit. One of the terms of the civil settlement is that “[a]ny amounts paid to the United States as criminal restitution in the criminal case ... against Sheth shall be credited against the” $20 million civil judgment. Six months after Sheth’s sentencing, the government had not liquidated all of Sheth’s forfeited assets, and neither had the government distributed any proceeds of liquidated assets to the victims. Nonetheless, the government began post-judgment proceedings under the existing criminal docket number to discover other assets belonging to Sheth and to collect those assets in satisfaction of the restitution amount. See United States v. Lee, 659 F.3d 619, 620 (7th Cir.2011) (explaining that district courts may entertain post-judgment collection proceedings within underlying criminal case). The government elected to use state collection procedures, as permitted by federal law when collecting restitution. See 18 U.S.C. §§ 3664(m)(l)(A)(I), 3613(a), (f); United States v. Resnick, 594 F.3d 562, 565 (7th Cir.2010). It served citations on ten financial-services companies, see 735 ILCS § 5/2-1402(a), informing those third parties about the order of restitution and stating that $12,395,563 remained unpaid. (This is $19,253 more than Sheth was ordered to pay in the restitution order.) The service of such citations initiates supplementary proceedings during which the court may compel a third party in possession of the judgment debtor’s assets to turn over the assets to the judgment creditor to satisfy an unpaid judgment. See 735 ILCS § 5/2 — 1402(a)—(c); ILL. S. CT. R. 277(b); Dexia Crédit Local v. Rogan, 629 F.3d 612, 622 (7th Cir.2010); Workforce Solutions v. Urban Servs. of Am., Inc., 364 Ill.Dec. 778, 977 N.E.2d 267, 275 (Ill.App.Ct.2012). The government received written answers from the third parties and learned that five of them held assets belonging to Sheth — four brokerage accounts and one 401(k) plan. At the time the citations were served (April and May of 2011), the total value of these assets was $281,102. In September 2012 — 18 months after learning of these" }, { "docid": "17614949", "title": "", "text": "filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f); see also In re Salem, 465 F.3d 767, 779 (7th Cir.2006). A party objecting to a claim carries the initial burden of proof to rebut the presumption of allowability. In re Pierport Dev. & Realty, Inc., 491 B.R. 544, 547 (Bankr.N.D.Ill.2013). Once the objector has produced some evidence questioning the allowability of a claim, the burden then shifts back to the claimant to produce evidence to meet the objection and establish that the claim in fact is allowable. Id. B. Standards Governing Citation Liens Specifically The Illinois legislature has provided judgment creditors with various procedures to enforce their judgments. One of these is the citation to discover assets set forth in 735 Ill. Comp. Stat. 5/2-1402. A citation to discover assets serves three primary functions: (1) it automatically creates a renewable six-month lien on all of the judgment debtor’s non-exempt personal assets and income in state and federal courts; (2) it provides the creditor with a specialized discovery procedure to assist it in determining the existence and location of assets that might be seized and sold to satisfy the judgment debt; and (3) it provides a mechanism and forum for compelling turnover of non-exempt assets, so that they might be sold to satisfy the judgment debt. Illinois Supreme Court Rule 277(a) defines any citation proceeding under 735 Ill. Comp. Stat. 5/2-1402 as a “supplementary proceeding.” Ill.Sup.Ct.R. 277(a). That Rule limits supplementary proceedings to six months, although it permits such extensions “as justice may require:” A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the respondent’s first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in" }, { "docid": "23245315", "title": "", "text": "district court personal jurisdiction over her. We find Sarah’s argument unpersuasive. FRCP Rule 69(a) subordinates state supplementary procedure only when there is a federal statute fulfilling a comparable function. Hartmann v. United States, 79 F.R.D. 705 (E.D.Wis.1978); Mission Bay Campland, Inc. v. Sumner Financial Corp., 71 F.R.D. 432 (M.D.Fla.1976). The citation procedure set forth under Illinois law contemplates more than merely the discovery of the assets of the judgment debtor. The statute also provides that the judgment creditor is “entitled to . . . compel the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment or decree.” Ill.Rev.Stat. ch. 110, § 73 (1979). See also Cochran v. Howell, 46 Ill.App.2d 304, 197 N.E.2d 87 (1964); Hamilton v. Country Club Properties, 320 Ill.App. 688, 51 N.E.2d 1008 (1943). This additional remedial aspect distinguishes the citation procedure from a general discovery proceeding and suggests that Sarah’s characterization of the citation as a deposition subpoena is inaccurate. We believe that a citation to discover assets is more appropriately considered a document in the nature of a summons. Service of the citation commences the supplementary proceeding in the same manner that service of a summons commences an ordinary civil action. The citation, like a summons, commands the party served to appear before the court in regard to the specified cause. Although the judgment creditor may elect to conduct all or part of the citation examination hearing by deposition, this provision appears to be more for the convenience of the parties and does not go to the nature of the citation proceeding itself. See Ill.Rev.Stat. ch. 110A, § 277(e) (1979). As a result, FRCP Rule 45(d)(2) governing the service of deposition subpoenas is inapplicable to the service of a citation summons and does not displace Illinois law in the instant case. We do not believe that the district court’s reference to FRCP Rule 45(d)(2) in its February 23, 1979, order denying Textile’s motion to conduct Sarah’s citation examination in its Chicago office requires this court to reach a different result. Illinois law does not restrict the issuance" } ]

[ { "docid": "22188488", "title": "", "text": "muddy water; that Cooper regarded Armistead’s acting as lookout as “helpful”; that employees of the respondent would sometimes make trips in boats for testing purposes, in furtherance of respondent’s business; and that in one such instance an employee had taken a boat on a trip of at least fifty miles in respondent’s behalf. Granting that more than one possible conclusion could have been reached upon the evidence, we think it was clearly sufficient to support the Deputy Commissioner’s finding that Armi-stead was acting in the course of his employment. The Circuit Court of Appeals should therefore have accepted it as final. Voehl v. Indemnity Ins. Co., 288 U. S. 162. (2) The Circuit Court was of the opinion that even if Armistead had acted in the course of his employment, the Longshoremen’s and Harbor Workers’ Act would not apply because his employment was “so local in character” that Virginia could validly have included it under a state workmen’s compensation Act. 116 F. 2d 789. This proposition cannot be rested on the ground that Armistead, hired primarily as a janitor and porter, was predominantly a non-maritime employee. For, habitual performance of other and different duties on land cannot alter the fact that at the time of the accident he was riding in a boat on a navigable river, and it is in connection with that clearly maritime activity that- the award was here made. Cf. Northern Coal Co. v. Strand, 278 U. S. 142, 144; Liability Assurance Co. v. Cook, 281 U. S. 233, 236. Moreover, § 2 (4) of the Act expressly provides for its application to “employees [who] are employed ... in whole or in part upon the navigable waters of the United States.” If the conclusion of the Circuit Court can be supported at all, it must be on the basis that the employment, even though maritime and therefore within an area in which Congress could have established exclusive federal jurisdiction, is nevertheless subject to state regulation until.Congress has exercised its paramount power. Cf. Liability Assurance Co. v. Cook, supra, 237. Congress having expressly kept out of the" } ]

[ { "docid": "5368305", "title": "", "text": "another container when his brakes failed. No ship was present at the pier at the time, and the containers in the marshaling area were not scheduled to be loaded aboard a vessel until later in the day when one was scheduled to arrive. II. The awards were made under § 3(a) of the Act, 33 U.S.C. § 903(a) (1975 Supp.), which, in pertinent part and with italics to show the Amendments made in 1972, provides: Compensation shall be payable . . . in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). The meaning of the words “employee” and “employer” is found in § 2(3) and (4), 33 U.S.C. § 902(3) and (4) (1975 Supp.), and these subsections, with italics to show the 1972 Amendments, provide: (3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. (4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). Prior to 1972, benefits were payable under the Act to any person (except a master or member of a crew or a person loading or unloading a vessel under eighteen tons net) if he was injured “upon the navigable waters of the United States (including any dry dock) and if recovery" }, { "docid": "3145703", "title": "", "text": "work. We think, rather, that the claimant in Diamond M. simply carried more than the initial burden of proof required of him in this circuit. Under the ALJ’s findings of fact, which are supported by substantial evidence, Maze made out a prima facie case by showing inability to do his previous job because of a job-related injury. Odom has presented no evidence of available work that Maze could still perform. Thus the ALJ’s conclusion, as affirmed by the Benefits Review Board, that Maze is totally and permanently disabled must stand. The order of the Board must be affirmed. AFFIRMED. . 33 U.S.C. § 902(3) provides that: [t]he term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. . 33 U.S.C. § 903(a) provides in relevant part that: [c]ompensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . 33 U.S.C. § 902(10) provides that: ‘[disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment. . The canal was connected to the Intracoastal waterway system so that barges could be moved to various points in the United States. . 33 U.S.C. § 902(4) defines employer to mean: an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or" }, { "docid": "20795686", "title": "", "text": "condition — resulted from the injury he suffered on the Wyandotte pier on December 12, 1972. Conclusion We find no legal error in the determination of the Benefits Review Board that claimant David E. Carroll suffered a disabling injury while engaged in maritime employment. Accordingly, the Board’s award of federal compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., is AFFIRMED. AFFIRMED. . Hullinghorst has withdrawn a third contention, conceding it to have been “mooted” by the recent decision of the United States Supreme Court in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). . Previously, on August 8, 1975, Carroll filed suit against Hullinghorst and Wyandotte in the United States District Court for the Eastern District of Louisiana — an action dismissed for lack of subject matter jurisdiction on May 28, 1976. Carroll also filed suit in state court on February 25, 1976, seeking benefits under Louisiana’s workmen’s compensation statute. Those actions have no direct bearing on the issues presented to this court. . Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring on the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).... 33 U.S.C. § 903(a). . The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. 33 U.S.C. § 902(3). . The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining" }, { "docid": "21911014", "title": "", "text": "loading, unloading, repairing, or building a vessel). . We discuss this decision more fully in VI below. . Possible exceptions to this characterization of the prior jurisprudence are Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941) and Ellis v. Gulf Oil Corp., 48 F.Supp. 771 (D.N.J.1943), where land-dutied employees whose work had never before taken them on the water were nevertheless allowed LHWCA compensation for death resulting from injury on the navigable waters. For present purposes (since it is unnecessary to decide the broader issue), Parker — where an entirely land-based employee of a small boat sales company was drowned while accompanying another employee testing a motor boat on an inland river — can be construed as concerning an employer covered by the Act insofar as maritime injuries because some of his employees from time to time tested boats on the water in the course of their employment. The pre-1972 Act, 33 U.S.C. § 902(4), as does the present, 33 U.S.C. § 902(4) (quoted in note 6), pertinently described an employer covered by the Act as one “any of whose employees are engaged in maritime employment, in whole or in part, upon the navigable waters of the United States * * . Section 5(b), 33 U.S.C. § 905(b) in full provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provision of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair" }, { "docid": "21911013", "title": "", "text": "compensation shall be payable in respect of the disability or death of a master or member of the crew, of a person engaged by a master to load or unload or repair any small vessel under eighteen tons, or any governmental officer or employee. . 33 U.S.C. § 902 relevantly provides: When used in this chapter— ****** (3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include á master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. (4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . We discuss this decision more fully in VI below. . Possible exceptions to this characterization of the prior jurisprudence are Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941) and Ellis v. Gulf Oil Corp., 48 F.Supp. 771 (D.N.J.1943), where land-dutied employees whose work had never before taken them on the water were nevertheless allowed LHWCA compensation for death resulting from injury on the navigable waters. For present purposes (since it is unnecessary to decide the broader issue), Parker — where an entirely land-based employee of a small boat sales company was drowned while accompanying another employee testing a motor boat on an inland river — can be construed as concerning an employer covered by the Act insofar as maritime injuries because some of his employees from time to time tested boats on the water in the course of their employment. The pre-1972 Act, 33 U.S.C. § 902(4), as does the present, 33 U.S.C. § 902(4) (quoted in note 6)," }, { "docid": "22888236", "title": "", "text": "of the Amendments was “to upgrade the benefits, extend coverage to protect additional workers, provide a specified cause of action for damages against third parties, and to promulgate administrative reforms,” Sen.Rep., supra, p. 1. The change in the coverage section was dramatic. Before amendment the first sentence of 31 U.S.C. § 903(a) read: Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. The Amendments altered this to read: Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). In place of the definition of “employee” previously contained in § 902(3) as “not includpng] a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net,” the Amendments defined the term as follows: The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. The definition of “employer,” § 902(4), (4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock). was modified by inserting after “navigable waters of the" }, { "docid": "22432084", "title": "", "text": "master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. “(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” §§ 902(3), (4) (1970 ed.). As amended in 1972, the definitions read: “(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in long-shoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. “(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” Second, the Amendments modified the section defining covered injuries, 33 U. S. C. § 903(a). Before the Amendments, it read: “Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of— “(1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or “(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.”" }, { "docid": "21911017", "title": "", "text": "in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). (Emphasis supplied.) Prior to the amendment section 2(3), 33 U.S.C. § 902(3), defined “employee” negatively as follows: The term “employee” does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. The Act’s coverage then resulted from an “injury” in the course of employment, section 2(2), 33 U.S.C. § 902(2), with an “employer,” then defined in section 2(4), 33 U.S.C. § 902(4), as meaning “an employer, any of whose employees are employed in maritime employment, in whole or in part upon the navigable waters of the United States (including any dry dock).” As noted, the amended section 2(3), as reported by the Senate and House committees and enacted unchanged, now defined “employ ee” affirmatively, see note 6 for full text, as “any person engaged in maritime employment, including any longshoreman .. . harborworker,” etc. (Emphasis supplied.) . The Court in a footnote explains “this narrowly defined class” as referring to the LHWCA’s exclusion of the master or member of a crew, of a person engaged by the master to load or unload or repair a small vessel under eighteen tons net, and of employees of the United States; noting that these exclusions are retained by the 1972-revised Act (see second paragraph of note 5, above). . In this regard, the Committee further observed: It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modem cargo-handling techniques, such as containerization and the use of LASH-type" }, { "docid": "979597", "title": "", "text": "ceased operations after building over 200 naval vessels for the government. The facilities were purchased by United States Steel Corporation in 1950 and in 1955 placed under the management of American Bridge Division. . In holding that Buller was an “employee” under the LHWCA, the ALJ reasoned in part: If the claimant was performing the same work for Newport News Shipbuilding Company, the question would not even arise as to whether the claimant was a shipbuilder. The fact that he was working for a different company does not change the nature of his work or the duties that he was performing. Vol. I No. 78-1554 at 72. . A statutory employer is an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). 33 U.S.C. § 902(4) (1976). American Bridge concedes that it is an “employer” as defined by this section based on longshoring activities of their barges. . § 903. Coverage (a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability of death of— (1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or (2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof. . The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not" }, { "docid": "979598", "title": "", "text": "is an “employer” as defined by this section based on longshoring activities of their barges. . § 903. Coverage (a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability of death of— (1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or (2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof. . The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, ship-breakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel. The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for" }, { "docid": "18161742", "title": "", "text": "and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” . Section 902(4) provides as follows: “The term ‘employer’ means an employer-any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” . Section 903(a) provides as follows: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . . Many of the arguments raised by the parties in both cases have been resolved by decisions of this court in Dravo Corporation v. Maxin, 545 F.2d 374 (3d Cir. 1976) and Johns, supra, which were decided after the briefs in these appeals were filed. In the briefs and at oral argument in these cases, the Board’s attorneys have urged that 33 U.S.C. § 920(a) creates a “statutory presumption” that the claim comes within the provision of the Act. We discussed this contention in Dravo, supra, note 7 at 380, and observed that the issue has been decided with mixed results by several courts of appeals. The principal question in each of the present cases is whether the work function of the employee for Sea-Land can be said to fall within the functional meaning of the term “longshoring” as Congress employed that term in extending the coverage of the LHWCA by enacting the 1972 Amendments. This would appear to be essentially a legal question and not a factual one. But we expressly do not decide the point at" }, { "docid": "20795687", "title": "", "text": "this court. . Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring on the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).... 33 U.S.C. § 903(a). . The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. 33 U.S.C. § 902(3). . The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). 33 U.S.C. § 902(4). . E. g., Texports Stevedore Co. v. Winchester, 554 F.2d 245, 246 (5th Cir.), modified in part on rehearing on other grounds, 561 F.2d 1213 (5th Cir. 1977), aff’d on rehearing en banc on other grounds, 632 F.2d 504 (5th Cir. 1980) (en banc); Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 178 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 190 (1977). See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 268-72, 97 S.Ct. 2348, 2359-61, 53 L.Ed.2d 320 (1977). . The definition of “employer” contained in § 902(4) was changed in the 1972 amendments to the Act so as to reflect the expanded definition of “navigable waters of the United States” incorporated by those amendments into § 903(a). Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 264 n.23, 97 S.Ct. 2348, 2357" }, { "docid": "13187287", "title": "", "text": "In place of the merely negative definition of “employee” given by the 1927 Act (which excluded crew members), Congress substituted the following language: “The term ‘employee’ means any person engaged in maritime employment, in-eluding any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker,. but such term does not include a master or member of a crew of any vessel or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U.S.C. § 902(3). Thus the exclusion of crew members was retained, but an affirmative listing of occupations functionally related to the maritime transportation industry was added. For this case the key words are “longshoreman or other person engaged in longshoring operations.” The 1972 amendments also changed the “employer” definition by omitting the limitation “upon the navigable waters of the United States” and substituting “The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” 33 U.S.C. § 902(4). The new definition quite clearly was intended to afford coverage in places which under the 1927 statute had been left to the state workmen’s compensation acts. That this was intended is confirmed by the “coverage” provision. The 1972 amendment to § 3(a) omitted the qualification “and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law,” and thus abandoned the 1927 approach of providing a mere interstitial remedy which deferred to state law to the maximum extent permissible under the Jensen holding. As amended, § 3(a) provides: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier," }, { "docid": "5368306", "title": "", "text": "The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. (4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). Prior to 1972, benefits were payable under the Act to any person (except a master or member of a crew or a person loading or unloading a vessel under eighteen tons net) if he was injured “upon the navigable waters of the United States (including any dry dock) and if recovery for the disability through workmen’s compensation proceedings [could] not validly be provided by State law,” with certain exceptions not material here. The pre-1972 Act thus did not distinguish among employees depending on the function they performed. Instead, the geographical location of the injury was all-important, with coverage stopping at the water’s edge. Sections 2 and 3 of the present Act establish a dual test for coverage. The situs requirement has been retained, with the definition of “navigable waters” expanded to include certain specified land areas. In addition, a new “status” test has been added: the person injured (“employee”) must have been engaged in “maritime employment,” a concept which is nowhere defined but which includes “longshoring operations.” The net effect of the 1972 Amendments was therefore to broaden the area in which an injury would be covered, and narrow the class of persons eligible according to job function. Section 4 of the amended Act, 33 U.S.C. § 904, limits liability for compensation to an “employer” as defined in § 2(4), 33 U.S.C. § 902(4). The definition" }, { "docid": "21911016", "title": "", "text": "services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. . These decisions had recognized the legislatively-overruled longshoremen’s unseaworthiness remedy (Sieracki) and the legislatively-overruled right of the vessel (Ryan) to indemnity against the stevedore. . Before the 1972 amendment, the definition by section 2(4) simply provided: The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock). By the 1972 amendment, section' 2(4) was amended to provide as definition: The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). (Emphasis supplied.) Prior to the amendment section 2(3), 33 U.S.C. § 902(3), defined “employee” negatively as follows: The term “employee” does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. The Act’s coverage then resulted from an “injury” in the course of employment, section 2(2), 33 U.S.C. § 902(2), with an “employer,” then defined in section 2(4), 33 U.S.C. § 902(4), as meaning “an employer, any of whose employees are employed in maritime employment, in whole or in part upon the navigable waters of the United States (including any dry dock).” As noted, the amended section 2(3), as reported by the Senate and House committees and enacted unchanged, now defined “employ ee” affirmatively," }, { "docid": "8582513", "title": "", "text": "repair any small vessel under eighteen tons net.’ The scope of the Act’s affirmative coverage was derived from the definition of ‘employer’ in § 2(4), and the ‘coverage’ provisions in § 3(a). An ‘employer’ was described as an employer of persons ‘employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).’ 33 U.S.C. § 902(4). “Of concern for purposes of this case are the revised definitions of ‘employer,’ § 2(4), and ‘employee,’ § 2(3), and the revised ‘coverage’ provision of § 3(a). In place of the merely negative definition of ‘employee’ given by the 1927 Act (which excluded crew members), Congress substituted the following language: ‘The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.’ 33 U.S.C. § 902(3). “Thus the exclusion of crew members was retained, but an affirmative listing of occupations functionally related to the maritime transportation industry was added. For this case the key words are ‘longshoreman or other person engaged in longshoring operations.’ “The 1972 amendments also changed the ‘employer’ definition by omitting the limitation ‘upon the navigable waters of the United States’ and substituting ‘The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).’ 33 U.S.C. § 902(4).” Id. at 632. . See footnote 5, supra. . As the Supreme Court stated in Kermarec v. Compagnie General Transatlantique, 358 U.S. 625, 630-32, 79 S.Ct. 406, 409, 3 L.Ed.2d 550 (1959): “The issue must be decided in the performance of the Court’s" }, { "docid": "15430615", "title": "", "text": "in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.” S.Rep.13; H.R.Rep.10-11. [Emphasis added]. “Section 2(a) amends section 2(3) of the Act to define an ‘employee’ as any person engaged in maritime employment. The definition specifically includes any longshoreman or other person engaged in longshoreing [sic] operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker. It does not exclude other employees traditionally covered but retains that part of 2(3) which excludes from the definition of ‘employee’ masters, crew members or persons engaged by the master to unload, load or repair vessels of less than eighteen tons net.” S.Rep.16. See also, H.R.Rep.14. [Emphasis added], . See Northeast Marine Terminal Co. v. Capu-to, Ibid., 432 U.S. pp. 259-260, 269, 97 S.Ct. 2348. . Ibid., p. 269. . See footnote 11. . 33 U.S.C. § 903(a) (1970 ed., Supp. V) provides: “Compensation shall be payable ... in respect of disability or death of an employee but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel) . . . .” [The italicized parts indicate material added in 1972]. . See Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. page 263, n. 21, 97 S.Ct. 2348; see historical note to 33 U.S.C.A. § 903. . In this case it is unnecessary for us to decide the eligibility of a person who performed merely incidental duties on navigable waters. Cf. Thibodaux v. Atlantic Richfield Co., supra, holding that the amended LHWCA does not apply to an employee who performs his duties on land but is injured during his transportation over navigable waters while journeying from one land duty to another land duty. OPINION ON RESPONDENTS’ PETITION FOR REHEARING Contrary to what is alleged at page 10 of respondents’ petition for rehearing, the record does not show that Sullivan when injured was standing upon a" }, { "docid": "21911012", "title": "", "text": "LHWCA compensation payments by the insurer of his employer, Aqua-tek. As amended in 1972, the Act permits an injured employee to bring suit for negligent injury against third-person vessel parties, section 905(b), 33 U.S.C. § 905(b), subject to employer’s right to be reimbursed from any damage recovery for benefits paid, id. section 933, 33 U.S.C. § 933. The employer’s insurer did, in fact, intervene herein to assert its claim for reimbursement. . See Miller v. Central Dispatch, Inc., 673 F.2d 773, 784 (5th Cir. 1982); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). . 33 U.S.C. § 903(a) provides: Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).... The remainder of the section provides that no LHWCA compensation shall be payable in respect of the disability or death of a master or member of the crew, of a person engaged by a master to load or unload or repair any small vessel under eighteen tons, or any governmental officer or employee. . 33 U.S.C. § 902 relevantly provides: When used in this chapter— ****** (3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include á master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. (4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in" }, { "docid": "18161741", "title": "", "text": ". . Our jurisdiction is based upon 33 U.S.C. § 921(c) as amended Oct. 27, 1972, Pub.L. 92-576, § 15(a), 86 Stat. 1261, 1262. Our review is governed by the “substantial evidence” test of section 921(b)(3). See e. g., Senate Report at 15. . The parties disputed the distance of the accident’s situs from the Elizabeth Channel. The administrative law judge found it to be about 800 feet. Under Judge Gibbons’ analysis in Johns, supra, the distance is not of controlling importance on these facts. . The cutting-up of damaged containers was done next to a cyclone fence at the extreme southeast corner of the marshalling yard where such containers were left prior to their destruction. (A.L.J.X. 2 at 317a) The administrative law judge found that the claimant had been scrapping containers for “three or four days prior to the accident.” . Section 902(3) provides as follows: “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” . Section 902(4) provides as follows: “The term ‘employer’ means an employer-any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” . Section 903(a) provides as follows: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . . Many of" }, { "docid": "950489", "title": "", "text": "F.2d 1111 (2d Cir. 1980). . The beams in this case were steel, but they are often made of wood. These strut beams are used only to support the forms for the concrete. Thus the beams are securely attached to the pilings, but are not a permanent part of the pier. After the concrete has been poured and has set, the beams are removed, so that only the concrete remains. . § 903. (a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability or death of- (1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or (2) An officer or employee of the United States or any agency thereof- or of any State or foreign government, or of any political subdivision thereof. . § 902. (3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. .There is arguably a third jurisdictional confine: Trotti & Thompson must have been a statutory employer within the meaning of 902(4): The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer" } ]

[ { "docid": "22302990", "title": "", "text": "insurers, are nevertheless rescued from preemption by an “insurance saving clause,” which provides that ERISA does not “exempt or relieve any person from any law of any State which regulates insurance....” 29 U.S.C. § 1144(b)(2)(A). We disagree. The insurance saving clause is limited by the so-called “deemer clause,” which provides that no employee benefit plan “shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts____” 29 U.S.C. § 1144(b)(2)(B). Thus, C & P cannot be deemed to be an insurer or otherwise engaged in the business of insurance by virtue of its sponsorship of the Plan and Powell’s claims against C & P under state laws regulating insurance are not exempted from preemption by the insurance saving clause. Since Connecticut General is not an “employee benefit plan,” the deemer clause is inapplicable to it. See 29 U.S.C. § 1144(b)(2)(B). Powell contends that as an insurance company, Connecticut General is subject to state laws regulating insurance, including the implied covenant of good faith and fair dealing and the Virginia Unfair Trade Practices Act, and that these claims are therefore saved from preemption by the insurance saving clause, § 1144(b)(2)(A). We read the insurance saving clause, however, to exempt from ERISA’s preemptive effect only those state insurance laws that regulate the “business of insurance.” Regulation of the “business of insurance” is expressly reserved to the states by the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, and ERISA’s insuranee saving clause, which is similarly worded and which reflects the concerns of McCarran-Ferguson, is most reasonably construed to cover the same category of state insurance regulation. See Metropolitan Life Insurance Co. v. Massachusetts, — U.S. -, -n. 21, 105 S.Ct. 2380, 2392 n. 21, 85 L.Ed.2d 728 (1985) (“The ERISA saving clause ... appears to have been designed to preserve the McCarran-Ferguson Act’s reservation of the business of insurance to the States.”). The primary features of an insurance contract are the spreading and underwriting of a policyholder’s" } ]

[ { "docid": "2984379", "title": "", "text": "should be “expansively applied.” Ingersoll-Rand, 111 S.Ct. at 482. That clause provides: Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. 29 U.S.C. § 1144(a). Two other provisions of ERISA are relevant in determining the scope of preemption Congress intended— the saving clause and the deemer clause. The saving clause provides: Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. 29 U.S.C. § 1144(b)(2)(A). The deemer clause provides: Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B). The Supreme Court has noted that these clauses “are not a model of legislative drafting,” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985), but “[t]heir operation is nevertheless discernible,” FMC Corp., 111 S.Ct. at 407: [The pre-emption clause] establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that “regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. FMC Corp., id. In Taylor, supra at 538, the Supreme Court ruled that state common law contract and tort claims" }, { "docid": "3408679", "title": "", "text": "to regulate insurance, banking, and securities is likewise expressly limited by subparagraph (2)(B) of that subsection, commonly referred to as the “deemer clause:” Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B) (1988) (emphasis added). In the seminal case of FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), the United States Supreme Court described the application and scope of these provisions: The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that “regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. In FMC Corp., the Court discussed whether ERISA preempted the application of Pennsylvania’s anti-subrogation statute which specifically prohibited an insurer from collecting funds from a plaintiff in satisfaction of its subrogation interest when the plaintiff had been injured and obtained recovery in an action arising out of the maintenance or use of a motor vehicle. Id. at 55, 111 S.Ct. at 406. The Court noted that ERISA’s general preemption clause was to be read broadly to preempt any and all state laws which related to, or had a connection or reference with, an employee benefit plan. Id. at 58, 111 S.Ct. at 407 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). Emphasizing that such a" }, { "docid": "22954046", "title": "", "text": "S.Ct. 403, 407, 112 L.Ed.2d 356 (1990); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208,105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985). In performing this analysis we begin with any statutory language that expresses an intent to pre-empt, but we look also to the purpose and structure of the statute as a whole. FMC Corp., 111 S.Ct. at 407; Ingersoll-Rand Co. v. McClendon, — U.S. -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). ERISA contains an explicit pre-emption clause, which provides, in relevant part: Except as provided in subsection (b) of this section,' the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a).... ERISA § 514(a). It is by now well-established that the “deliberately expansive” language of this clause, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987), is a signal that it is be construed extremely broadly. See FMC Corp., 111 S.Ct. at 407 (“[t]he preemption clause is conspicuous for its breadth”); Ingersoll-Rand, 111 S.Ct. at 482. The key words “relate to” are used in such a way as to expand pre-emption beyond state laws that relate to the specific subjects covered by ERISA, such as reporting, disclosure and fiduciary obligations. Id. at 482. Thus, state laws “relate[] to” employee benefit plans in a much broader sense — whenever they have “a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). This sweeping pre-emption of state law is consistent with Congress’s decision to create a comprehensive, uniform federal scheme for the regulation of employee benefit plans. See Ingersoll-Rand, 111 S.Ct. at 482; Pilot Life, 481 U.S. at 45-46, 107 S.Ct. at 1551-52. The most obvious class of pre-empted state laws are those that are specifically designed to affect ERISA-governed employee benefit plans. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 829-30, 108 S.Ct." }, { "docid": "23094352", "title": "", "text": "the Sanderses, Rule 17(a) would preclude Blue Cross from obtaining reimbursement under the Plan. See Plan, Section XI, ¶ 2. Rule 17(a) thus would fall within the scope of ERISA preemption. See 29 U.S.C. § 1144(a) (stating that, except as provided in the saving clause, ERISA supersedes all state laws that “relate to any employee benefit plan”); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1549, 95 L.Ed.2d 39 (1987) (stating that ERISA preemption has an “expansive sweep” and is not limited to state laws designed specifically to affect employee benefit plans); cf. FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (holding that state subrogation law related to employee benefit plans because it prohibited plans from being structured in a manner requiring reimbursement in the event of recovery from a third party). Moreover, ERISA’s saving clause, 29 U.S.C. § 1144(b)(2)(A), does not protect Ala. R. Civ. P. 17(a) from preemption. The saving clause states that, except as provided in the déemer clause, “nothing in this subchapter shall be construed to exempt or reheve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). In Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562, 569 (11th Cir.1994), this court explained that the saving clause only applies if the state law meets both prongs of the following two-part test: (1) \"the state law must regulate insurance within a common-sense view of the word ‘regulate,’” id., and thus the law “must not just have an impact on the insurance industry, but must be specifically directed toward that industry,” Pilot Life, 481 U.S. at 50, 107 S.Ct. at 1554; and (2) the state law must regulate the “business of insurance,” as that term is defined by cases interpreting the scope of the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, see Jefferson Pilot Life, 14 F.3d at 569 (citing Metropolitan Life Ins. Co. v. Travelers Ins. Co., 471 U.S. 724, 743, 105 S.Ct. 2380, 2391, 85 L.Ed.2d 728 (1985)). As this court has held, a state" }, { "docid": "1701313", "title": "", "text": "we have jurisdiction over defendant Googins. II. ERISA Preemption The preemption clause of ERISA provides generally that “the provisions of [ERISA] shall supersede any and all laws insofar as they may now or hereafter relate to any employee benefit plan ...” 29 U.S.C. § 1144(a) (1988). This “deliberately expansive” preemption clause, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987), reflects the intent of Congress to create a comprehensive national scheme for the regulation of employee welfare benefit plans. However, since Congress did not thereby intend to impinge upon the power of the states to regulate the insurance industry, the preemption clause is limited by a saving clause: [N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance ... 29 U.S.C. § 1144(b)(2)(A). This saving clause is in turn limited by a “deemer” clause providing that neither an employee benefit plan nor a trust created pursuant to such a plan “shall be deemed to be an insurance company ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts.... ” 29 U.S.C. § 1144(b)(2)(B). In FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), the Supreme Court described the interplay between the deemer clause and the saving clause: The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that “regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. FMC held that the deemer clause was violated by a Pennsylvania" }, { "docid": "14023769", "title": "", "text": "section [the saving clause], the provisions of this title and title IV shall supersede any and all State laws insofar as they now or hereafter relate to any employee benefit plan described in section 4(a) [29 U.S.C. § 1003(a) ] and not exempt under section 4(b) [29 U.S.C. § 1003(b)]. 29 U.S.C. § 1144(a). The Supreme Court has given this clause a very broad reading, considering the language “deliberately expansive” in order to ensure that the regulation of employee benefit plans remains within the federal forum. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39, 46 (1987). The preemptive scope of ERISA is “intended to apply in the broadest sense in all actions of State or local governments which have the force of law.” Id., 107 S.Ct. at 1552. Most recently the Court observed: “The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA.” FMC Corporation v. Holliday, — U.S. —, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990). In Holliday the Court noted that the savings clause permitted the state to enforce its insurance regulations, subject to the limitations of the “deemer” clause. The Court declared: Under the deemer clause, an employee benefit plan governed by ERISA shall not be ‘deemed’ an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws ‘purporting to regulate’ insurance companies or insurance contracts. Id., 111 S.Ct. at 407. Reflective of the broad reach of the statute, the Supreme Court has found preemption of state laws which only collaterally or indirectly affected employee benefit plans. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981). The State asserts that ASTA does not “relate to” the plans, insisting that it does not affect “relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries and the benefi-ciaries_” Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, 793 F.2d" }, { "docid": "17078292", "title": "", "text": "provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. 29 U.S.C. § 1144(a). From this broadly designated area of exclusive federal concern, the savings clause returns to the states the power to regulate insurance, banking, and securities: Except as provided in subparagraph (B) [the deemer clause], nothing in this sub-chapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. Id. § 1144(b)(2)(A). Finally, pursuant to the deemer clause, an employee benefit plan governed by ERISA shall not be deemed an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws purporting to regulate insurance companies or contracts: Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for the purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. Id. § 1144(b)(2)(B). In a series of four opinions, the Supreme Court has expansively interpreted the preemptive scope of ERISA. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). In Metropolitan Life, a former employee filed suit in a Michigan state court against his former employer and its insurer, claiming breach of contract, retaliatory discharge and wrongful termination of disability benefits. Metropolitan Life, 481 U.S. at 61, 107 S.Ct. at 1545. Defendants removed the action to federal court alleging federal question jurisdiction over the claim for disability benefits and pendent jurisdiction over the’ remaining claims. Id. The Supreme Court held that" }, { "docid": "23575294", "title": "", "text": "far as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The United States Supreme Court has affirmed the broad preemptive scope of ERISA and the prohibition of even indirect state action relating to self-funded employee benefit plans. See e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985); Shaw, 463 U.S. at 98-99, 103 S.Ct. at 2900-01; Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 525, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402 (1981). The express preemption provision of ERISA is deliberately expansive, and it is designed to establish pension plan regulation as exclusively a federal concern. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987). An exception to this general preemption provision is found in 29 U.S.C. § 1144(b)(2)(A). This section, known as the “insurance saving clause,” exempts state laws regulating insurance, banking, or securities from the preemption clause. The Baxters argue that neither common law nor paragraph 17.14 allows subrogation against uninsured motorist benefits. The Fund asserts that state law regarding sub-rogation is irrelevant as ERISA preempts its application to this employee benefit plan. Thus, the issue here is whether ERISA has preempted the common law of subrogation. We agree with the district court that the question must be answered in the Fund’s favor. To analyze the preemption claim in this case, we first determine whether the state law in question “relates to” employee benefit plans within the meaning of section 514(a). Shaw, 463 U.S. at 96, 103 S.Ct. at 2899. Such a relationship exists when the state law in question “has a connection with or reference to” an employee benefit plan. Pilot Life Ins. Co., 481 U.S. at 47,107 S.Ct. at 1553; Shaw, 463 U.S. at 97, 103 S.Ct. at 2900. This phrase is not to be limited to those state laws which deal specifically with ERISA plans or with subject matters covered by ERISA plans. Shaw, 463 U.S. at 98, 103 S.Ct. at 2900. Thus, any provision of state" }, { "docid": "5460370", "title": "", "text": "an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B). See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739-47, 105 S.Ct. 2380, 2388-93, 85 L.Ed.2d 728 (1985) (established three part preemption test); Gonzales v. Prudential Ins. Co., 901 F.2d 446, 452-53 (5th Cir.1990) (applying three part analysis); FMC Corp. v. Holliday, 885 F.2d 79, 84 (3rd Cir.1989), cert. granted, — U.S.-, 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990). In Gonzales, this court discussed the deemer clause: The purpose of this clause is to prevent states from treating ERISA plans as insurers and, then, by taking advantage of the preemption exemption set out in the saving clause, subjecting them to state insurance regulation. The clause therefore has the general effect of prohibiting the states from regulating ERISA plans even though they exhibit some of the same risk-distributing characteristics as do traditional insurers. 901 F.2d at 453 (footnotes omitted). In Metropolitan Life, the Supreme Court noted further that the deemer clause creates “a distinction between insured and uninsured plans, leaving the former open to indirect regulation [by the states] while the latter are not.” 471 U.S. at 747, 105 S.Ct. at 2393; See also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-46, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987). The stage being painstakingly set, we turn finally to the issue on appeal. But the sole issue is a narrow one; whether the parenthetical phrase “(other than a plan established primarily for the purpose of providing death benefits)” in the deemer clause removes the life insurance plan in issue (which remains an “employee benefit plan”) from the preemptive effect of ERISA. This appears to be an issue of first impression. As quoted above, the deemer clause provides: Neither an employee benefit plan described in section 1003(a) ..., which is not exempt under section 1003(b) ... (other than a plan established" }, { "docid": "11389700", "title": "", "text": "common law claims as well as state statutory claims: Pilot Life, 481 U.S. at 47, 107 S.Ct. at 1552. The preemption clause is modified by the savings clause and the deemer clause. The savings clause states nothing in the preemption clause “shall be construed to exempt or relieve any person from any law of any state which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A) (1985). “[O]nly laws specifically directed toward the insurance industry are exempt from ERISA preemption.” Baxter v. Lynn, 886 F.2d 182, 185 (8th Cir.1989), citing, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987). The deemer clause provides that ERISA plans shall not “be deemed to be an insurance company or other insurer ... for purposes of any law of any state purporting to regulate insurance companies.” 29 U.S.C. § 1144(b)(2)(B) (1985). These clauses read together will only “protect from preemption state insurance laws that indirectly regulate insured plans.” Auto Club Ins. Ass’n v. Mutual Sav. & Loan Ass’n, 672 F.Supp. 997, 999 (E.D.Mich.1987), citing, Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985). “In order to be ‘saved,’ then, the law must regulate insurance, any regulation of the Plan must be indirect, and the Plan must be insured, meaning by an independent insurer rather than self-insurance.” Auto Club Ins. Ass’n v. Mutual Sav. & Loan Ass’n, 672 F.Supp. 997, 999 (E.D.Mich.1987). See also Baxter v. Lynn, 886 F.2d 182, 184 (8th Cir.1989). Therefore, analysis of ERISA’s preemptive scope generally requires a three-step analysis. First, do the state laws relate to an employee benefit plan? Second, do the state laws regulate insurance, banking, or securities so that the savings clause precludes pre-emption by ERISA? Third, does the deemer clause prevent the Plan or Trust Fund from being an insurance company? Moore v. Provident Life & Accident Ins. Co., 786 F.2d 922, 926 (9th Cir.1986). The difficulty in analyzing the present situation stems from the fact that the preemption clause appears to be broader than the civil enforcement provisions. Given the" }, { "docid": "10332842", "title": "", "text": "to Garrity v. Rural Mutual Insurance Company, 77 Wis.2d 537, 253 N.W.2d 512 (1977)). Thus, if the Wisconsin common law (“the Rimes doctrine”) is applicable to the dispute between Northern and Jennifer, the Plan is barred from recovering any money from Jennifer until she has been made whole. Northern does not dispute that the Rimes doctrine prohibits it from recovering from Jennifer until she is made whole, but instead, argues that this state law is automatically preempted by 29 U.S.C. § 1144(b)(2)(B), otherwise known as the “deemer clause,” (see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987)) because the Plan is self-insured. Jennifer has not objected to Northern’s assertion that ERISA governs the Plan nor that the Plan is self-insured. Upon review of Title 29 U.S.C. §§ 1002(1), 1003, and 1132, and the terms of the Plan, this court finds (1) that Jennifer’s claim for clarification of her rights under the Plan is governed by ERISA and (2) that the Plan is self-insured. There are three provisions in ERISA which determine when state law is preempted: (1) the general “preemption clause” in 29 U.S.C. § 1144(a); (2) the “savings clause” in 29 U.S.C. § 1144(b)(2)(A); and (3) the “deemer clause” in 29 U.S.C. § 1144(b)(2)(B). The United States Supreme Court has repeatedly held that the first two provisions operate to preempt a state law that in any way “relates to” employee benefit plans unless the state law “regulates insurance.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 733, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1984); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). In addition, even if the state law “regulates insurance,” it is still preempted if it falls within the “deemer clause.” Pilot, 481 U.S. at 45, 107 S.Ct. at 1552." }, { "docid": "5333167", "title": "", "text": "when misrepresentations made to life insurer). Accordingly, the judgment of the district court is AFFIRMED. . Plaintiff Vincent Fioretti is a citizen of Florida. Defendant Massachusetts General Life Insurance Company is a Massachusetts corporation, having its principal place of business in Colorado. .Given our conclusion that judgment was properly entered in favor of MassGen, we have no need to decide the primary issue raised by Mass-Gen’s cross-appeal, that being whether, in light of the \"preemption clause” of the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1144(a) (West 1985), federal common law should be held to govern this dispute. Nevertheless, we note that MassGen's preemption argument is tenuous at best. Assuming that the disputed insurance policy was provided under an \"employee welfare benefit plan,” and hence subject to ERISA, see 29 U.S.C.A. § 1002(1) (West 1985), the ERISA \"savings clause” expressly provides that, with one exception not presently relevant, the preemption clause \"shall [not] be construed to exempt or relieve any person from any law of any State which regulates insurance.\" 29 U.S.C.A. § 1144(b)(2)(A) (West 1985). The broad language of the savings clause makes it difficult to define the scope of the equally broad preemption clause. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739-46, 105 S.Ct. 2380, 2389-92, 85 L.Ed.2d 728 (1985); Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562, 569-71 (11th Cir.), cert. denied, -U.S.-, 115 S.Ct. 57, 130 L.Ed.2d 15 (1994). Nevertheless, it seems relatively clear that the central legal issue in this case, namely the effect (if any) of the disputed insurance policy’s incontestability clause, involves provisions of state law designed to directly regulate the insurance industry. As such, these questions of state law fall within the scope of the ERISA savings clause and are not preempted. See FMC Corp. v. Holliday, 498 U.S. 52, 58-62, 111 S.Ct. 403, 407-10, 112 L.Ed.2d 356 (1990); cf. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-57, 107 S.Ct. 1549, 1552-58, 95 L.Ed.2d 39 (1987). Moreover, since the benefits of this ERISA \"plan” were not payable from a self-insurance fund, but rather" }, { "docid": "23437638", "title": "", "text": "Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), that Michigan’s similar “mandated benefit law” was not pre-empted. The majority concedes that Ky.Rev.Stat. § 304.18-110(5) “does not qualify as a ‘mandated benefit law’.” I find no basis, therefore, to conclude that Metropolitan Life mandates “that the plaintiff’s conversion claim survives pre-emption in spite of Pilot Life.\" Ingersoll-Rand fully supported the rationale of Pilot Life. Nor is the majority’s reasoning somehow buttressed by FMC Corp. Plaintiffs’ counsel conceded in a December 14, 1990 letter to the court, “because the employer in FMC was sei/insured, the case did not involve any purchase or regulation of insurance and the result in that case instead turned on ERISA’s ‘deemer’ clause, which all parties recognize is inapplicable here.” (Emphasis in original). FMC holds that “[t]he pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA.” Id., Ill S.Ct. at 407. That language is quoted in Ingersoll-Rand. See Ingersoll-Rand, 111 S.Ct. at 482. FMC held only that the “deemer clause” exempts “self-funded ERISA plans from state laws that ‘regulat[e] insurance’ within the meaning of the saving clause.” FMC, 111 S.Ct. at 409. Under McMahan v. New England Mut. Life Ins. Co., 888 F.2d 426 (6th Cir.1989), it is a close question whether Ky.Rev.Stat. § 304.18-110(5), unlike the Kentucky law involved in that case, is a law which “regulates insurance within the meaning of ERISA’s saving clause,” id. at 430, but I would conclude that McMahan is not a basis for avoiding ERISA pre-emption of this claim. I would hold that plaintiffs must proceed on the basis of an ERISA claim to enforce their asserted rights under the policy for the alleged improper refusal to pay and for wrongful termination. I cannot conclude or assume that ERISA provides no potential remedy to plaintiffs on their claim that New York Life failed to make benefit payments under the policy. That ERISA may provide to plaintiffs a lesser remedy than state law, is not a" }, { "docid": "5395078", "title": "", "text": "of Mr. McDonald’s claim for wages due and owing, the Court agrees with Defendants for the reasons set forth below. The preemption clause of ERISA provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The Supreme Court has repeatedly ruled that Congress intended for this clause to be read expansively. “The breadth of [ERISAj’s pre-emptive reach is apparent from that section’s language. A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.... Congress used the words ‘relates to’... in their broad sense.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-900, 77 L.Ed.2d 490 (1983) (footnotes omitted). “The pre-emption clause is conspicuous for its breadth.” FMC Corp. v. Holliday, 498 U.S. [-,-1 111 S.Ct. 403, 407 [112 L.Ed.2d 356] (1990). Its “deliberately expansive” language was designed to “establish pension plan regulation as an exclusively federal concern.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 [107 S.Ct. 1549, 1552, 95 L.Ed.2d 39] (1987) (quoting Alessi v. RaybestosManhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981)). Ingersoll-Rand Co. v. McClendon, — U.S. -, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). Not only has “relates to” been read broadly, but “State law” has a comprehensive statutory definition. “[T]o underscore its intent that [ERISA’s preemption clause] be expansively applied, Congress used equally broad language in defining the ‘State law’ that would be pre-empted. Such laws include ‘all laws, decisions, rules, regulations, or other State action having the effect of law.’ 29 U.S.C. § 1144(c)(1).” Id., 111 S.Ct at 483. The facts in Ingersoll-Rand are similar to those in this case. Ingersoll-Rand fired Perry McClendon who had worked as a salesperson for the company for over nine years. McClendon brought a state law wrongful discharge claim based in contract and tort law, claiming that the reason for his termination was the company’s desire" }, { "docid": "12278481", "title": "", "text": "clauses commonly referred to as the preemption clause, the savings clause and the deemer clause. The Supreme Court recently described the interrelationship of these provisions: If a state law ‘relate[s] to ... employee benefit plan[s],’ it is pre-empted. § 514(a). The saving clause excepts from the pre-emption clause laws that ‘regulat[e] insurance.’ § 514(b)(2)(A). The deemer clause makes clear that a state law that ‘purport[s] to regulate insurance’ cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B). Pilot Life Ins. Co. v. Dedeaux, — U.S. —, —, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987). This case primarily implicates the pre-emption clause. The Supreme Court has noted the expansive sweep of this clause. Pilot Life, — U.S. at —, 107 S.Ct. at 1553; Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 759, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985). Specifically, the phrase “relate to” has been given the broadest common sense meaning, such that a state law “relates to” a benefit plan if it has a connection with or reference to such a plan. Pilot Life, — U.S. at —, 107 S.Ct. at 1553; Metropolitan Life v. Massachusetts, 471 U.S. at 739, 105 S.Ct. at 2389. In addition, the Supreme Court has emphasized that the pre-emption clause is not limited to state laws specifically designed to affect employee benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). For example, in Pilot Life the Court held that the common law causes of action of “tortious breach of contract” and “the Mississippi law of bad faith” were related to the employee benefit plan which was the focus of the litigation and accordingly the claims fell under the ERISA preemption clause. — U.S. at —, 107 S.Ct. at 1553. Mrs. Shiffler’s second and third causes of action were asserted against Westinghouse and the Westinghouse Insurance Plan. Her second cause of action alleged that Westinghouse as “plan administrator” breached its duty to compel Equitable to pay the benefits due to her and breached its duty to bring" }, { "docid": "3408680", "title": "", "text": "“regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. In FMC Corp., the Court discussed whether ERISA preempted the application of Pennsylvania’s anti-subrogation statute which specifically prohibited an insurer from collecting funds from a plaintiff in satisfaction of its subrogation interest when the plaintiff had been injured and obtained recovery in an action arising out of the maintenance or use of a motor vehicle. Id. at 55, 111 S.Ct. at 406. The Court noted that ERISA’s general preemption clause was to be read broadly to preempt any and all state laws which related to, or had a connection or reference with, an employee benefit plan. Id. at 58, 111 S.Ct. at 407 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). Emphasizing that such a broad reading of the preemption clause was warranted by the need to ensure that plan administrators were not subjected to conflicting state regulations which would affect and hinder the overall efficiency of the plan’s administration process, the Court concluded that under its expansive interpretation of the preemption clause, Pennsylvania’s anti-subrogation statute did relate to employee benefit plans and, therefore, was preempted. Id. 498 U.S. at 58-60, 111 S.Ct. at 407-409. In analyzing whether Pennsylvania’s statute was “saved” from the effects of the preemption clause by the saving clause and whether it was nonetheless preempted by the deemer clause, the Court drew a clear distinction between ERISA’s preemptive effect upon state laws which relate to self-funded employee benefit plans and other employee benefit plans funded by insurance: As a result, self-funded ERISA plans are exempt from state regulation insofar as that regulation “relate[s] to” the plans. State laws directed toward the plans are pre-empted because they relate to an employee benefit plan but are not “saved” because they do not regulate insurance. State laws that directly" }, { "docid": "23575293", "title": "", "text": "any state law which attempted to regulate ERISA benefit plans. It also held that the trustee’s interpretation of the subrogation clause was not arbitrary or capricious and granted summary judgment in favor of the Fund. DISCUSSION I. ERISA PREEMPTION The first issue presented is whether ERISA preempts the application of state subrogation law to this employee benefit plan. ERISA comprehensively regulates employee pension and welfare plans. Title 29 U.S.C. § 1002(1) defines an employee welfare benefit plan as any fund or program through which an employer provides employees “through the purchase of insurance or otherwise” with “medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.” The statute imposes participation, funding, and vesting requirements on pension plans and sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibilities, for both pension and welfare plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). Section 514(a) of ERISA preempts “any and all State laws in so far as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The United States Supreme Court has affirmed the broad preemptive scope of ERISA and the prohibition of even indirect state action relating to self-funded employee benefit plans. See e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985); Shaw, 463 U.S. at 98-99, 103 S.Ct. at 2900-01; Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 525, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402 (1981). The express preemption provision of ERISA is deliberately expansive, and it is designed to establish pension plan regulation as exclusively a federal concern. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987). An exception to this general preemption provision is found in 29 U.S.C. § 1144(b)(2)(A). This section, known as the “insurance saving clause,” exempts state laws regulating insurance, banking, or securities from the preemption clause. The Baxters argue that neither common law nor" }, { "docid": "4137954", "title": "", "text": "preemption provision declaring that the statute “shall supersede any and all State laws insofar as they may now or hereafter relate to employee benefit plans.” 29 U.S.C. § 1144(a); see also FMC Corporation v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990); Swerhun v. Guardian Life Ins. Co., 979 F.2d 195, 197 (11th Cir.1992). This preemption provision contains three stages. See Swerhun, 979 F.2d at 197. A state law relates to an employee benefit plan when it has a connection with or a reference to such a plan. Holliday, 498 U.S. at 57, 111 S.Ct. 403. 2. The Savings Clause The Scope of ERISA’s preemption is limited, however, by the “insurance saving clause” of Section 514(b)(2), 29 U.S.C. § 1144(b)(2)(A); American Med. Sec. Inc. v. Bartlett, 915 F.Supp. 740, 743 (D.Md.1996). The savings clause provides that, except as provided in the deemer clause, “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A); see also Holliday, 498 U.S. at 60-61, 111 S.Ct. 403. This clause broadly preserves the States’ lawmaking power over the insurance industry. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); Thompson v. Talquin Bldg. Prod. Co., 928 F.2d 649, 651 (4th Cir.1991); Powell v. Chesapeake & Potomac Tel. Co., 780 F.2d 419, 421 (4th Cir.1985). In determining whether a state law regulates insurance for the purpose of the savings clause, the Supreme Court suggests that courts look to the common-sense view of the language of the savings clause. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987) (explaining that a common-sense view of the word “regulates” suggests that the law must not just have an impact on the insurance industry, but must be specifically directed toward the industry). The Supreme Court identified three criteria for determining whether a state law regulates insurance. See Metropolitan Life, 471 U.S. at 742, 105 S.Ct. 2380. It said that courts should: (1)" }, { "docid": "1702795", "title": "", "text": "912 F.2d 1383, 1385 (11th Cir.1990). ERISA is a comprehensive statute that subjects employee benefit plans to federal regulation. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). Section 514(a) of ERISA, the preemption clause, provides that ERISA “supersede^] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The Supreme Court has noted that the preemption clause “is conspicuous for its breadth,” FMC Corp. v. Holliday, 498 U.S. 52, -, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), and has instructed that the clause should be “expansively applied,” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). ERISA’s preemptive effect upon state law operates in three stages. First, as a general rule, ERISA preempts all state laws that relate to ERISA covered plans. 29 U.S.C. § 1144(a). Second, the exception to the general rule is the “saving clause” which provides that nothing in ERISA “shall be construed to exempt or relieve any person from any law of any State which regulates insurance_” 29 U;S.C. § 1144(b)(2)(A). Third, the exception to the exception is the “deemer clause” which provides that no employee benefit plan “shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies_” 29 U.S.C. § 1144(b)(2)(B). Swerhun does not dispute that the Guardian plan is an ERISA-covered plan. Nor does she dispute that her complaint is based on state laws that “relate to” an ERISA plan and, hence, fall within ERISA’s preemption clause. Indeed, the Supreme Court has determined that a state statute “relates to” an ERISA plan “if it has a connection with” such a plan, see Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900; see also Pilot Life Ins. Co. v." }, { "docid": "2984380", "title": "", "text": "any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B). The Supreme Court has noted that these clauses “are not a model of legislative drafting,” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985), but “[t]heir operation is nevertheless discernible,” FMC Corp., 111 S.Ct. at 407: [The pre-emption clause] establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that “regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. FMC Corp., id. In Taylor, supra at 538, the Supreme Court ruled that state common law contract and tort claims arising from an employer’s termination of disability benefits were preempted by ERISA and removable from state to federal court. In Pilot Life the Court went further, holding that ERISA preempts all state common law causes of action based on the alleged improper processing of a claim for benefits. In that case, the plaintiff sought contract damages, tort damages for mental and emotional distress, and punitive damages, but failed to assert any ERISA causes of action. All of the plaintiffs claims were held preempted. In FMC Corp., the Court held that ERISA preempts a state law precluding employee welfare benefit plans from exercising subrogation rights on a claimant’s tort recovery. And in Inger-soll-Rand, the Court held that a state common law cause of action based on an alleged wrongful discharge, which sought punitive damages and recovery for future lost wages and mental anguish rather than lost pension benefits, was also preempted by ERISA. While FMC Corp. and Inger-soll-Rand were decided after briefing and oral argument in this case, the Macioseks will find no comfort there; ERISA’s" } ]

[ { "docid": "23402961", "title": "", "text": "are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The ultimate inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether the government officials in this case are entitled to qualified immunity, we ask two questions: First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff has shown that a constitutional violation has occurred? Second, was the right clearly established at the time of the violation? See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006). The district court concluded that the first step of the qualified immunity inquiry — whether the Estate had shown a constitutional violation — and the merits of Phillips’s deliberate indifference claims were identical, since both concerned the reasonableness of the correctional officers’ conduct in light of the circumstances the officers faced. On this basis, the district court found summary judgment based on qualified immunity inappropriate. See Phillips, 2007 WL 788325, at *9 (“[W]here the legal question of qualified immunity turns upon which version of the" } ]

[ { "docid": "21567420", "title": "", "text": "facts to overcome Ramirez’s absolute and qualified immunity from suit. We turn first to Ramirez’s claim of qualified immunity. “[GJovernment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Unlike other affirmative defenses, qualified immunity is not merely a defense to liability; it is also an immunity from suit. Qualified immunity protects a defendant from discovery, trial, and the other burdens of litigation. For this reason, prior to filing an affirmative defense, a defendant can challenge a complaint by filing either a motion to dismiss or a motion for summary judgment if the plaintiff has failed to come forward with facts or allegations that establish that the defendant has violated clearly established law. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). Following a defendant’s motion to dismiss, the district judge should permit the plaintiff to come forward with any additional allegations showing that the defendant vio lated clearly established law. Pueblo Neighborhood, 847 F.2d at 646. The court must then determine whether the complaint includes “all of the factual allegations necessary to sustain a conclusion that defendant violated clearly established law.” Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989). In addition to coming forward with the necessary factual allegations, the plaintiff must demonstrate that the right in question was clearly established at the time of the defendant’s conduct. Pueblo Neighborhood, 847 F.2d at 646. The plaintiff cannot meet this burden merely by identifying a clearly established right and then alleging that the defendant has violated it. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Unless and until the plaintiff both demonstrates a clearly established right" }, { "docid": "21963606", "title": "", "text": "Officers Fruge, Garza, Ingles, and Neveu Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether qualified immunity applies, a court engages in a two-part inquiry asking: first, whether “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right”; and second, “whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Although the Supreme Court has recognized considering these two questions in order “should not be regarded as mandatory in all cases ... it is often beneficial.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that q reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Although this does not mean that “a case directly on point” is required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). “The central concept is that of ‘fair warning’: The law can be clearly established ‘despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’” Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013) (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)). Here, Trammel contends that the force used by Officers Fruge, Garza, Neveu, and Ingles was excessive to the need and that his right to be free from such force was clearly established. In addition, Trammel claims that the conduct of the" }, { "docid": "10779365", "title": "", "text": "immunity. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity protects defendants not only from liability but also from suit. Id. Once the defendant raises the defense of qualified immunity, “the plaintiff then has the burden to show with particularity facts and law establishing the inference that the defendants violated a constitutional right.” Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994). “This burden is quite heavy ... for the plaintiff must do more than simply allege the violation of a general legal precept. The plaintiff must ‘instead demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.’” Jantz v. Muci 976 F.2d 623, 627 (10th Cir.1992) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Only if plaintiff makes that threshold showing does the burden shift to defendants to show that no material facts remain in dispute that would defeat defendant’s claim of qualified immunity. Id. The district court found that “plaintiffs general claims of being denied property and liberty interests without due process are insufficient to satisfy her shifted burden of establishing that defendants’ alleged actions violated clearly established law at the time of her being placed on administrative leave without pay.” App. 17. “To assess whether an individual was denied procedural due process, ‘courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.’ ”" }, { "docid": "15865962", "title": "", "text": "a malicious or sadistic motivation. Accordingly, plaintiff has stated a cause of action under the Fourteenth Amendment. In the next section, the Court will determine, however, whether the defendants have viable defenses to plaintiffs otherwise cognizable claim under the Fourteenth Amendment. B. Officer Worley’s Defense of Qualified Immunity Officer Worley has asserted the defense of qualified immunity to plaintiffs Section 1983 claims against him in his individual capacity. “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lassiter v. Alabama A & M Univ., Bd. of Trs., 28 F.3d 1146, 1149 (11th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place that ‘what he is doing’ violates federal law.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Once the defendant makes this showing, “the burden is on the plaintiff to show that, when the defendant acted, the law established the contours of a right so clearly that a reasonable official would have understood his acts were unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (1994). Accordingly, there is a two-prong test to determine if qualified immunity applies: (1) was the defendant performing a discretionary function when he committed the acts at issue in this case and (2) did defendant’s actions violate “clearly established law?” As to the first inquiry, it is undisputed that Officer Worley was performing a discretionary function when he was attempting to restrain plaintiff in this case. Since “[t]here is no doubt in the present case that the officers were acting within their discretionary authority, ..." }, { "docid": "17146248", "title": "", "text": "stringent standards for a plaintiff seeking to overcome the affirmative defense of qualified immunity asserted by a government official in an individual capacity. “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, 28 F.3d at 1149 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). “For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.) (en banc) (quoting Lassiter, 28 F.3d at 1150), cert. denied, — U.S. -, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997). III. Moran is entitled to summary judgment in her individual capacity on Gonzalez’s section 1983 claim only if Moran’s conduct did not violate clearly established First Amendment rights of which a reasonable government official in Moran’s position would have been aware. Because resolution of this question requires us to determine the contours of clearly established law, we have interlocutory jurisdiction to review the district court’s denial of summary judgment. See Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir.1996). A public employee must satisfy four conditions in order to prevail in a section 1983 action alleging that she was fired in" }, { "docid": "12819442", "title": "", "text": "on plaintiff’s § 1983 claim for equal protection violations is denied. Qualified Immunity The defendants further move for summary judgment under the doctrine of qualified immunity. Government officials are shielded from liability for civil damages when performing discretionary functions, provided their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). For a plaintiff to sue a government official, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The doctrine of qualified immunity balances the needs of government officials to carry out their duties without the fear of potential litigation, with the interests of plaintiffs for vindication and compensation. Harlow, 457 U.S. at 814, 102 S.Ct. at 2736; Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). The question of whether qualified immunity attaches is a pure question of law for this Court to decide. Garvie, 845 F.2d at 649; Donta v. Hooper, 774 F.2d 716, 719 (6th Cir.1985), cert. denied, 483 U.S. 1019, 107 S.Ct. 3261, 97 L.Ed.2d 760 (1987). This Court holds that the contours of Ms. Cameron’s rights to be free from sexual discrimination in the workplace were clearly established at the time the defendants did not renew her contract. Congress adopted Title VII in the Civil Rights Act of 1964. Title VII was amended in 1978 to prohibit discrimination on the basis of pregnancy. Thus, the prohibitions against sexual discrimination have been firmly entrenched in the law for a substantial amount of time. Moreover, one need not be an expert on Title VII to realize that discrimination against women in the work place is a legal taboo. Therefore, this Court holds that a reasonable official would have known that discriminating against a woman based upon her pregnancy by artificial insemination and her status as an unwed mother violated the woman’s rights. Accordingly, the defendants’" }, { "docid": "23699369", "title": "", "text": "Eleventh Amendment, absent a waiver by Illinois or congressional override. Id. Finding neither waiver nor congressional override, we remand these claims to the district court with instructions that they be remanded to the Will County Circuit Court. Finally, having found no constitutional violation resulting from the search of Gossmeyer’s office, we necessarily find that Count II’s conspiracy allegation fails as well. D. Qualified Immunity . Moreover, all defendants involved are entitled to the defense of qualified immunity, which they raised in their motions to dismiss. Qualified immunity is an affirmative defense which may be raised in a motion to dismiss, but we consider only the facts alleged in the complaint, which we must accept as true. Lanigan, 110 F.3d at 471. Under the defense of qualified immunity, “government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 471-72 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). A right is clearly established when its contours are sufficiently clear so that a reasonable official would realize that what he is doing violates that right. Shields, 874 F.2d at 1205 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). This does not meán that there has to be a case on point holding that the officials’ exact conductas illegal before we will find the officials liable; however, “in the light of preexisting law the unlawfulness' must be apparent.” Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). Gossmeyer bears the burden of demonstrating that the constitutional right allegedly violated was clearly established “before the defendants] acted or failed to act.” Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir.1993). This requires the plaintiff to point to either a . closely analogous case or evidence that the defendants’ conduct is so violative of, the constitutional right that reasonable officials would know that their conduct was unconstitutional without guidance from courts. Id. We" }, { "docid": "19489871", "title": "", "text": "to the crux of this appeal. Having decided that all three defendants are entitled to assert the defense of qualified immunity, we must decide whether they are actually entitled to its protection. \"The doctrine of qualified immunity shields officials from civil liability so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Once invoked, a plaintiff bears the burden of rebutting qualified immunity by showing two things: (1) that the officials violated a statutory or constitutional right and (2) that the right was \" 'clearly established' at the time of the challenged conduct.\" Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ); see also McClendon v. City of Columbia , 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam) (\"When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.\"). Law is \"clearly established\" for these purposes only if \"the contours of the right [were] sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right.\" Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). An official that violates a constitutional right is still entitled to qualified immunity if his or her actions were objectively reasonable. Spann v. Rainey , 987 F.2d 1110, 1114 (5th Cir. 1993). At bottom, a plaintiff must show that \"no reasonable officer could have believed his actions were proper.\" Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010). The parties agree that state officials have a duty under the Fourteenth Amendment to provide involuntarily detained persons with \"basic human needs, including medical care and protection from harm.\" Hare v. City of Corinth , 74" }, { "docid": "15385062", "title": "", "text": "for patronage reasons. Since defendant Cleverly could not have terminated plaintiff and it is undisputed that Cleverly did not participate in the selectmen’s decision to terminate plaintiff, plaintiff fails to state a claim against him. V. Qualified Immunity The plaintiff asserts that as a result of action taken by the defendants under color of state law, he has suffered a violation of his first amendment rights. Such a claim is cognizable under 42 U.S.C. § 1983. Paratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The defendants assert that the doctrine of qualified immunity shields them from liability insofar as plaintiff sues them individually. It is well established that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), cited in Cinelli v. Cutillo, 896 F.2d 650, 653 (1st Cir.1990). The Supreme Court has defined what constitutes such a clearly established right: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511, 535 n. 12 [105 S.Ct. 2806, 2820 n. 12, 86 L.Ed.2d 411] (1985)], but is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Cinelli, 896 F.2d at 653. The defendants argue that the rights allegedly violated were not clearly established; consequently, the defendants sued individually are entitled to judgment. The court does not agree. The Supreme Court, in a long line of cases, has established that the politically motivated discharge of a public employee is, except in limited instances, a violation of the employee’s first amendment rights. See Perry" }, { "docid": "17146247", "title": "", "text": "must enter summary judgment for the moving party. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In determining whether genuine issues of material fact exist, we resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). C. In analyzing a defense of qualified immunity, we first consider whether “the defendant government official [has proved] that he was acting within the scope of his discretionary authority when the alleged wrongful act occurred.” Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir.1997). If the defendant has met this burden, “the plaintiff must then demonstrate that the defendant violated clearly established law based upon objective standards.” Id. Because it is undisputed that Moran was acting within the scope of her discretionary authority when she fired Gonzalez, we consider only the second part of the qualified immunity analysis in our resolution of Gonzalez’s claims under 42 U.S.C. §§ 1983 and 3617. This circuit has established stringent standards for a plaintiff seeking to overcome the affirmative defense of qualified immunity asserted by a government official in an individual capacity. “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, 28 F.3d at 1149 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). “For qualified immunity to" }, { "docid": "538789", "title": "", "text": "of the grounds upon which the Fourteenth Amendment claim against him rests. Accordingly, Plaintiffs’ Fourteenth Amendment claim against Morales will be dismissed. In sum, Plaintiffs’ Fourteenth Amendment claim against Caldero will not be dismissed. However, Plaintiffs’ claim on the same grounds against Morales will be dismissed. Accordingly, Plaintiffs’ section 1983 claim against Morales must be dismissed. 3. Qualified Immunity This Court will now discuss whether the doctrine of qualified immunity bars Plaintiffs’ claims against Caldero. Qualified immunity protects public officials from the specter of damages liability for judgment calls made in a legally uncertain environment. Santana v. Calderon, 342 F.3d 18, 23 (1st Cir.2003) (citing Ryder v. United States, 515 U.S. 177, 185, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995)). Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The First Circuit employs a three-part test when determining if a public official is entitled to qualified immunity: “(1) whether plaintiffs allegations, if true, establish a constitutional violation; (2) whether that right was clearly established at the time of the alleged violation; and (3) whether a similarly situated reasonable official would have understood that the challenged action violated the constitutional right at issue.” Mihos v. Swift, 358 F.3d 91, 102 (1st Cir.2004) (citing Suboh v. District Attorney’s Office of Suffolk Dist., 298 F.3d 81, 90 (1st Cir.2002); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To overcome a qualified immunity defense, a plaintiff must lead the Court to answer all three prongs of this test in the affirmative. Mihos v. Swift, 358 F.3d at 98-99. “In order to conclude that the right which the official allegedly violated is ‘clearly established,’ the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523" }, { "docid": "23624645", "title": "", "text": "by briefly outlining the legal framework for a qualified immunity analysis. Although this ground has been covered in previous opinions of this court, it is apparent from this case that further amplification is appropriate. Prior to the Supreme Court’s decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), a determination of whether a public official was entitled to immunity under the qualified immunity doctrine required an inquiry into the official’s subjective belief as to the lawfulness of his/her actions. Consequently, qualified immunity was often referred to as good faith immunity. In Harlow, the Supreme Court eliminated the subjective or good faith element from the qualified immunity analysis and held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. In Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), the Court refined the Harlow standard by holding that the alleged constitutional right must be “clearly established” in a particularized sense. The Anderson Court stated that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. at 640, 107 S.Ct. at 3039. Thus, and as discussed in two recent opinions of this court, Cleveland-Perdue v. Brutsche, 881 F.2d 427 (7th Cir.1989) and Doe v. Bobbitt, 881 F.2d 510 (7th Cir.1989), a qualified immunity analysis entails a purely objective inquiry to determine whether, at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented. In Wade v. Hegner, 804 F.2d 67 (7th Cir.1986), we set out a two-step approach to" }, { "docid": "1560160", "title": "", "text": "recovery from individuals under section 1981(a)); Parents for Quality Educ. with Integration, Inc., 662 F.Supp. 1475, 1482 (N.D.Ind.1987) (holding that relief available against state officials for violations of section 1981, 1983 and 1985 is strictly limited to prospective relief). By implication, the same is true for 1986 claims. Defendants argue that Plaintiff has not alleged sufficient facts to overcome the individual defendants’ qualified immunity as government officials and hold them liable in their personal capacities for civil rights violations. The doctrine of qualified immunity is an affirmative defense which protects public officials from personal liability when performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Officials are shielded by qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id.; accord Cohen v. San Bernardino Valley College, 92 F.3d 968, 973 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1290, 137 L.Ed.2d 364 (1997) (liability is established when the Court determines that a reasonable person would have known that the action clearly violates a citizen’s right). The Court looks to whether “the contours of the right [are] sufficiently clear that a reasonable official would understand that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Deciding what a reasonable official would have known in a given situation to determine whether the affirmative defense of qualified immunity applies necessarily requires a factual determination. Factual determinations are not properly before the Court on a Motion for Judgment on the Pleadings. Accordingly, the Court will not rule on the issue of qualified immunity at this time; however, defendants are free to raise this issue in a motion for summary judgment at a later date. Defendants’ Motion is GRANTED as to the individual defendants in their official capacities for claims under sections 1981, 1983, 1985 and 1986 for retroactive relief (i.e., damages) only. The motion is DENIED as to the section" }, { "docid": "12819441", "title": "", "text": "Ms. Cameron’s contract. Accordingly, the defendants motion for summary judgment on the plaintiff’s § 1983 claim for violations of her substantive due process rights is denied. Equal Protection The defendants next move for summary judgment on Ms. Cameron’s § 1983 claim for the defendants’ alleged violation of the equal protection clause. State action which discriminates on the basis of gender is subject to scrutiny under the equal protection clause. See e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). The defendants argue that they are entitled to summary judgment on the plaintiff’s § 1983 equal protection claim because they did not treat the plaintiff differently from other similarly situated persons. Brief for Defendants, doc. 12, at 9 (citing Rowland v. Mad River Local School Dist., 730 F.2d 444 (6th Cir.1984)). The issue of whether the defendants did indeed treat Ms. Cameron differently is a question of fact. As discussed above, reasonable people could differ over the reasons for Ms. Cameron’s nonrenewal. Accordingly,' defendants’ motion for summary judgment on plaintiff’s § 1983 claim for equal protection violations is denied. Qualified Immunity The defendants further move for summary judgment under the doctrine of qualified immunity. Government officials are shielded from liability for civil damages when performing discretionary functions, provided their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). For a plaintiff to sue a government official, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The doctrine of qualified immunity balances the needs of government officials to carry out their duties without the fear of potential litigation, with the interests of plaintiffs for vindication and compensation. Harlow, 457 U.S. at 814, 102 S.Ct. at 2736; Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). The question of whether qualified immunity" }, { "docid": "14423239", "title": "", "text": "nor was it clearly established that the Free Speech Clause of the First Amendment prohibited adverse employment action based on statements such as Williams cites as the reason for her demotion. The district court’s determination that defendants were not entitled to qualified immunity is immediately appealable as a “final judgment” under the collateral order doctrine, and we therefore have jurisdiction over these qualified immunity issues. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Because the question of whether defendants are entitled to qualified immunity is a question of law, we review the district court’s determination on this issue de novo. E.g., Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir.1993). Government officials, such as the individual defendants in this case, have qualified immunity from personal liability for actions taken while performing discretionary functions. These officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly estab lished statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). If the right the government official allegedly violated was clearly established at the time of the challenged conduct, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818-19, 102 S.Ct. at 2738-39. For a right to be clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). “[T]he particular conduct of the official must fall clearly within the area protected by the constitutional right, such that a reasonable official would have known that his or" }, { "docid": "11764220", "title": "", "text": "on this premise will be dismissed as well. 2. Qualified Immunity: Defendants Hartrum, Van Oosterum, and Bulger Turning to the remaining individual defendants, the Court begins by noting that state officials, whether acting in the individual or official capacities, are persons for § 1983 purposes. When performing discretionary functions, however, state officials may be entitled to qualified immunity from individual liability for damages. Sanderfer v. Nichols, 62 F.3d 151, 153 (6th Cir.1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Qualified immunity serves to protect state officials from “ ‘undue interference with their duties and from potentially disabling threats of liability.’” Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994) (quoting Harlow, 457 U.S. at 806, 102 S.Ct. at 2731). Whether a defendant is entitled to this immunity from suit is a question of law to be decided at the earliest possible stage of the proceeding. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Under the doctrine of qualified immunity, state officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Thomas v. Whalen, 51 F.3d 1285, 1289 (6th Cir.1995). This standard is one of great deference, providing “ ‘ample room for mistaken judgments by protecting all but the plainly incompetent and those who knowingly violate the law.’” Dickerson v. McClellan, 101 F.3d 1151, 1160 (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam) (internal citations omitted)). As a result, “[t]he contours of the right [allegedly violated] must be sufficiently clear [such] that a reasonable official would understand that what he was doing violate[d] that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. The qualified immunity analysis is, thus, a two-part inquiry: first, the Court must determine whether, based on the applicable law at the time of the" }, { "docid": "8571932", "title": "", "text": "which a reasonable trier of fact could find a violation of plaintiff’s constitutional rights, and the court now holds that, if these allegations are found to be true, the acts of the individual defendants were such that no reasonable official could have believed those actions to have been constitutionally or legally sound.” We affirm the district court’s judgment in regard to Thompson’s first amendment claim. “[WJhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.... ” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982)). Thus, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (“It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”); Elliott v. Perez, 751 F.2d 1472, 1477 n. 13 (5th Cir.1985) (“Under the qualified immunity standard, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). The inquiry in the instant case then turns on whether, assuming Thompson’s allegations to be true, Raines, Sisk and Lindley violated rights of Thompson that were clearly established at the time of their actions. That is, whether the individual defendants would reasonably have" }, { "docid": "16190512", "title": "", "text": "the home as well. Because the Court cannot rule as a matter of law that Defendants have satisfied the strict scrutiny test, the Court will deny Defendants’ request for summary judgment on the substantive due process claims of the third cause of action. (11) Qualified Immunity: Brown, Baldwin, Beatti, Alley In the alternative, Defendants Brown, Baldwin, Beatti, and Alley argue that they are entitled to qualified immunity on Plaintiffs’ § 1988 claims brought against them in their individual capacities. Qualified immunity shields from liability government officials performing discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Under the Harlow standard, a court must first determine whether, viewing the facts in the light most favorable to the party asserting the injury, the plaintiff has alleged a deprivation of a constitutionally protected right. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 2155, 150 L.Ed.2d 272 (2001). If so, “then the second step is to determine whether the right is so ‘clearly established’ that a ‘reasonable official would understand that what he is doing violates that right.’ ” Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir.1996) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). The Court has already concluded that Plaintiffs have sufficiently alleged (and with respect to some claims, established as a matter of law) several constitutional violations on the part of the City Defendants relating to the Fourth Amendment’s search and seizure protections, procedural due process, and substantive due process. Accordingly, the Court proceeds to the second step of the analysis. An objective standard governs the second inquiry. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. “The determination as to whether the right was ‘clearly established’ is a determination that ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ ” Greene v. Barber, 310 F.3d 889, 894 (6th Cir.2002) (citing" }, { "docid": "22109032", "title": "", "text": "as a matter of law that she is protected, in her individual capacity, from civil damages by the doctrine of qualified immunity because the Plaintiffs failed to demonstrate that her conduct violated their clearly established statutory or constitutional rights. We review de novo the district court’s denial of qualified immunity. Belcher v. City of Foley, 30 F.3d 1390, 1395 (11th Cir.1994). Under qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). And “ ‘[f]or qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.’ ” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.1997) (en banc) (quoting Lassiter, 28 F.3d at 1150). In analyzing a defense of qualified immunity, we first consider whether Sheriff Barrett was acting within the scope of her discretionary authority when the alleged wrongful acts occurred. Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir. 1997). If Sheriff Barrett has met this burden, the Plaintiffs must then demonstrate that she violated clearly established law based upon objective standards. Id. On this record, it is undisputed that the Sheriff was acting within the scope of her discretionary authority when she made the various employment" }, { "docid": "20841262", "title": "", "text": "for money damages against state officials, acting “under color” of law, who violate a constitutional or statutory right. 42 U.S.C. § 1983; see also Camreta v. Greene, — U.S. -, 181 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011). But the doctrine of qualified immunity shields both state and federal officials from suit “unless [1] the official violated a statutory or constitutional right that [2] was clearly established at the time of the challenged conduct.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012); see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (setting out the standards for qualified immunity); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 54-56 & n. 15, 2014 WL 700718, at *18 & n. 15 (2d Cir. Jan. 3, 2014) (discussing the scope of the two-prong inquiry). This doctrine bai-anees “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Official conduct violates clearly established law “when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (brackets omitted)). The purpose of the doctrine is to ensure that the official being sued had “fair warning” that his or her actions were unlawful. Hope v. Pelzer, 536 U.S. 730, 739-40 & n. 10, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). To this end, a plaintiff need not show a case “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.Ct. at 2083; accord Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam); Fabrikant v. French," } ]

[ { "docid": "22317719", "title": "", "text": "and stated simply: “I hereby apply for relief from liability for training and service in the land or naval forces of the United States.” A footnote of the revised form quoted pertinent parts of § 3 (a). It was under these circumstances that petitioner signed a Revised Form 301 on February 26, 1944, and was classified IY-C by his Local Board. The Court of Appeals has accepted, as do we, the finding of the District Court that petitioner signed the application for exemption believing that he was not thereby precluded from citizenship, and that had he known claiming exemption would debar him from citizenship, he would not have claimed it, but would have elected to serve in the armed forces. Is petitioner debarred from citizenship by reason of the claimed exemption? The Treaty of 1850 with Switzerland was in full force in 1940 when the Selective Training and Service Act was passed. Standing alone, the Treaty provided for exemption of Swiss citizens from military service of the United States, and if that were all, petitioner would have been entitled to unqualified exemption. Section 3 (a) of the Act, while recognizing the immunity of citizens of neutral countries from service in our armed forces, imposed the condition that neutral aliens residing here who claimed such immunity would be debarred from citizenship. That the statute unquestionably imposed a condition on exemption not found in the Treaty does not mean they are inconsistent. Not doubting that a treaty may be modified by a subsequent act of Congress, it is not necessary to invoke such authority here, for we find in this congressionally imposed limitation on citizenship nothing inconsistent with the purposes and subject matter of the Treaty. The Treaty makes no provision respecting citizenship. On the contrary, it expressly provides that the privileges guaranteed by each country to resident citizens of the other “shall not extend to the exercise of political rights.” The qualifications for and limitations on the acquisition of United States citizenship are a political matter which the Treaty did not presume to cover. Thus, as a matter of law, the" } ]

[ { "docid": "4432270", "title": "", "text": "excludable alien, the provisions place an impermissible burden on his rights under the Argentine Treaty which, incidentally, is similar to fifteen other treaties, principally of Friendship, Commerce and Navigation in granting exemption from military service. Appellant concedes for purposes of this appeal that by exercising his treaty right he has waived his eligibility for citizenship under Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), but he argues that such a waiver does not mean he may be declared an excludable alien. Alternatively, appellant claims that as an alien lawfully admitted for permanent residence, temporarily leaving the country at the behest- and under the requirements of his employer, he would not be making an “entry” into the United States upon his return from Israel. The court below did not reach the merits, but found the case unripe, and dismissed the action for lack of a “justi-ciable controversy,” without prejudice to appellant’s right later to seek relief from an exclusion order, if and when issued. We disagree with the court below and think that appellant should not be forced into the cul de sac of leaving the country, only to be “subjected,” on his return, “to the wearisome routine of immigration procedure as though [he] had never lived here,” ILWU Local 37 v. Boyd, 347 U.S. 222, 226, 74 S.Ct. 447, 449, 98 L.Ed. 650 (1954) (dissenting opinion), and the probability, in this case, of exclusion. Our view is taken from the perspective of the extensive INS-Itz-covitz history, and has in sight the concession made on argument that appellant would upon departure immediately take his place in the pages of the “Lookout Book.” That extensive history follows. Appellant came to this country from Argentina with his parents in 1966 and was admitted as a permanent resident alien. Although he had completed his Argentine military obligation, he was required as a permanent resident alien of draft age to register with our Selective Service System. 50 U.S.C.App. § 453. He did so and was classified I-A on October 24, 1966. On March 29, 1967, he received a notice" }, { "docid": "4196523", "title": "", "text": ".Congress, said would be final. B. Should Plaintiff be Required to Exhaust his Administrative Remedies? Plaintiff contends that any proceedings before the I.N.S. would be futile, and consequently that he should not be required to follow the statutory procedure and exhaust his administrative remedies. He explains that — in view of the expiration of his immigration visa on May 20, 1968 after he had been absent from the United States for one year — he could be deemed excludable after a hearing before a special inquiry officer for failure to have the necessary entrance papers, — thus resulting in an administrative decision that does not reach the merits of whether he was excludable under 8 U.S.C. § 1182(a) (22) (barring aliens ineligible for citizenship or those who have departed the United States to avoid or evade military service). Section 212(a) (20) of the 1952 Act, 8 U.S.C. § 1182(a) (20) (1964), does make excludable any alien who, at the time of his request for admission, is not in possession of a valid, unexpired immigrant visa. Review from an order of exclusion rendered on this ground would be limited, as plaintiff suggests, to that particular ground and no other. Licea-Gomez v. Pilliod, 193 F.Supp. 577 (N.D.Ill. 1960). However, the Court can perceive no reason why plaintiff’s primary argument — that his panic-induced flight was involuntary and that, consequently, he would not be making an “entry” upon his return — could not be presented to a reviewing court at that time. If no “entry” occurs when plaintiff shall have returned, the I.N.S. is without authority to exclude plaintiff even for lack of the appropriate entry documents. Furthermore, even if plaintiff were making an “entry”, he could apply to the district director of the port of entry for waiver of the requirement to present an unexpired, valid immigrant visa. ,If good cause exists for plaintiff’s delay in seeking to return to the United States, see 8 C.F.R. § 211.1(b) (3) (1968), plaintiff could be granted this waiver; and he would then be able to have his substantive claim of right to admission (including" }, { "docid": "23638865", "title": "", "text": "to grant him a series of extensions of his voluntary departure date pending his receipt of a permanent resident visa. The visa was granted and he lawfully entered this country on April 7, 1972. In August of 1975, petitioner was convict-' ed of knowingly inducing the entry of two illegal aliens into the United States. 8 U.S.C. § 1324(a)(4) (1976). He began serving two consecutive three-year terms and the INS commenced deportation proceedings. In those proceedings, petitioner conceded deportability but applied for discretionary relief under § 1182(c). In June of 1977, the Immigration Judge denied the requested relief because petitioner had not been continuously domiciled in this country for seven years subsequent to his admission for permanent residence in 1972. The judge added that, even if petitioner had met the domicile requirement, he would exercise his discretion to deny relief. The BIA affirmed the judge’s decision on the statutory ineligibility ground alone. It declined to address whether the Immigration Judge could have properly exercised his discretion to deny relief. DISCUSSION Aliens who seek admission may be excluded if they fall within any of the categories enumerated in 8 U.S.C. § 1182(a). Section 1182(c) waives the exclusion provisions for certain aliens with established roots in this country. It provides in pertinent part: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (l)-(25), (30), and (31) of subsection (a) of this section. 8 U.S.C. § 1182(c) (1976). Although originally applicable only to exclusion proceedings, § 1182(c) has been extended to deportation proceedings when deportees meet the requirements of the statute. According to the literal language of this provision, it applies only to aliens who are (1) “lawfully admitted for permanent residence,” (2) returning to a “lawful unrelin-quished domicile of seven consecutive years,” and who (3) “temporarily proceeded abroad voluntarily and not under an order of deportation.” Petitioner concededly meets the first requirement. He" }, { "docid": "4432277", "title": "", "text": "immediate concurrent significance. The issue is one which the courts can and appropriately should decide. Cf. Loos v. INS, 407 F.2d 651 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 150, 24 L.Ed.2d 135 (1969). The Government’s suggestion that within two years the appellant could apply to the Attorney General for a waiver of the excludability bar under 8 U.S.C. § 1182(c) is not meaningful since such a waiver can be applied for only by an alien who has voluntarily proceeded abroad, thus subjecting himself to exclusion. Similarly, the Government’s suggestion that within 3% years appellant could apply for citizenship under 8 U.S. C. § 1427(a) and thus obtain administrative and judicial review then is without merit, for on such an application the only issue would be whether he were validly declared ineligible for citizenship, a point which he concedes, and it would be unnecessary at the hearing thereon to reach the question of his excludability as an alien if he departed from the United States. This is a proper case for declaratory relief under 28 U.S.C. § 2201. We do not reach the question of the apparent clash between appellant’s rights under the treaty and the immigration laws, for we conclude that appellant’s return to the United States after his proposed trip to Tel Aviv would not constitute an “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a) (13), and the INS would therefore have no authority to exclude him under § 212, 8 U.S.C. § 1182, Rosenberg v. Fleuti, 374 U.S. 449, 452, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). We reach this result having in mind not the history of Itzcovitz's case but the history of § 101(a) (13) of the Act. As early as 1947, this court, in an opinion by Chief Judge Learned Hand, held that an alien convicted of robbery did not re-enter the United States when he went by sleeping car from Buffalo to Detroit, passing through Canada en route. Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947). The alien was held" }, { "docid": "4432273", "title": "", "text": "against INS’s refusal to permit him to return to the United States. The late Judge Herlands ruled that he had jurisdiction under Oestereich, supra, that Selective Service had no authority to deny Itzcovitz his claimed treaty exemption to which he had a “plain and unequivocal” right, and granted him in-junctive relief against Selective Service, but denied injunctive relief against the INS on the ground that Itzcovitz had not exhausted his administrative remedies. Itzcovitz v. Selective Service System, 301 F.Supp. 168 (S.D.N.Y.1969). Itzcovitz appealed from the denial of relief against the Immigration Service, and the Government cross-appealed from the granting of relief against the Selective Service System, but shortly before oral argument in this court the Government withdrew its cross-appeal. During oral argument a panel of this court consisting of (then Chief) Judge Lumbard, Judge Kaufman and Judge Hays suggested that Itzcovitz be permitted to return to this country and resume his permanent resident status. On November 26, 1969, in a letter to that panel, the Government agreed that it was “now prepared to admit Itzcovitz,” without conceding his eligibility for citizenship, and affirmed to the court that “upon [Itzeovitz’s] return” he would “not be subject to an exclusion proceeding and will be deemed to have resumed his permanent resident status.” Subsequently, on February 10, 1970, the District Director of INS notified the United States Attorney for the Southern District of New York that “steps have been initiated to have Mr. Itzeovitz’s name removed from our Service lookout book.” He had returned on January 24, 1970. His appeal was then dismissed as moot by the panel in a per curiam opinion noting that “the government has conceded the propriety of admitting Itzcovitz into the country, and the parties have informed us of his return.” Itzcovitz v. Selective Service Local Board No. 6, 422 F.2d 828 (2d Cir. 1970). Only after the Immigration Service had ignored letters written on March 12, June 18 and September 23, 1970, inquiring whether a brief departure from the country would result in his classification as an excludable alien on his return, did appellant institute this action" }, { "docid": "4432276", "title": "", "text": "The Immigration Service admits and makes it very clear — clearer to us, perhaps, than it did to the court below— that it would seek to exclude appellant after his sojourn in Tel Aviv. Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), tells us that the ripeness doctrine “is to prevent the courts * * * from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized * * We are required to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. 149, 87 S.Ct. 1515. We believe there is hardship in the case of this appellant, who has spent years seeking to retain his permanent resident alien status and is still left to guess whether he can go to Israel for a brief training course required by his employer. His case is not abstract, nor the issue without immediate concurrent significance. The issue is one which the courts can and appropriately should decide. Cf. Loos v. INS, 407 F.2d 651 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 150, 24 L.Ed.2d 135 (1969). The Government’s suggestion that within two years the appellant could apply to the Attorney General for a waiver of the excludability bar under 8 U.S.C. § 1182(c) is not meaningful since such a waiver can be applied for only by an alien who has voluntarily proceeded abroad, thus subjecting himself to exclusion. Similarly, the Government’s suggestion that within 3% years appellant could apply for citizenship under 8 U.S. C. § 1427(a) and thus obtain administrative and judicial review then is without merit, for on such an application the only issue would be whether he were validly declared ineligible for citizenship, a point which he concedes, and it would be unnecessary at the hearing thereon to reach the question of his excludability as an alien if he departed from the United States. This is a proper case for declaratory relief" }, { "docid": "13991847", "title": "", "text": "RHESA HAWKINS BARKSDALE, Circuit Judge: The linchpin to the Government’s challenge to the 28 U.S.C. § 2241 habeas relief granted excludable alien Isaías Toscano-Gil is whether he states a cognizable constitutional claim by asserting that, in denying him a waiver of inadmissibility, the Board of Immigration Appeals violated his right to procedural due process by characterizing his DWI arrest as a conviction and failing to discuss certain relevant factors or distinguish BIA precedent. Because such contentions do not state a cognizable constitutional claim, we REVERSE and DISMISS. I. Mexican native and citizen Toscano, a permanent United States resident since 1987, was arrested in March 1996 on returning from a brief trip to Mexico, when Immigration and Naturalization Service Agents found approximately 52 pounds of marijuana in his vehicle’s fuel tank. Tos-cano pleaded guilty to a Texas state charge of marijuana possession and received five years probation. The INS began exclusion proceedings in May 1996 under § 212(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(C), on the grounds that immigration authorities had reason to believe Toscano was involved in illicit trafficking a conceded he was excludable on this basis. But, he sought a waiver of inadmissibility, pursuant to former INA § 212(c), 8 U.S.C. § 1182(c): “Aliens lawfully admitted for permanent residence who temporarily [go] abroad ... and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.... ” (Emphasis added.) In January 1997, the Immigration Judge granted Toscano’s application, finding: he had demonstrated “unusual and outstanding” equities; it was “highly unlikely” he would become a repeat offender; and relief was warranted under BIA precedent. The Government appealed. In May 1998, the BIA, by a two to one decision, vacated the IJ’s decision and ordered Tos-cano excluded and deported. The BIA majority found Toscano’s employment history to be favorable. It noted his wife and children were residing illegally in this country, while his siblings were lawful permanent residents. Toscano’s “length of residence and family ties in this country” were determined to be “favorable factors, but" }, { "docid": "4432287", "title": "", "text": "S.Ct. at 1812. Our task in this, a case of statutory interpretation, has been made a little easier since Congress has had the gloss of Fleuti before it, for seven years, without tightening subsection (13) of the statute, or indeed changing it, even while changing provision after provision of subdivision (a) of § 101. Accordingly, we reverse and remand with direction to the court below to grant appellant’s motion for summary judgment and declare that appellant may take his proposed business trip. . The Treaty of Friendship, Commerce and Navigation between the United States and Argentina, July 7, 1853, 10 Stat. 1005, hereinafter the Argentine Treaty. . Section 315, 8 U.S.C. § 1426; Section 212 (a) (22), 8 U.S.C. § 1182(a) (22). . Article X of the Argentine Treaty provides : The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions or military exactions; and they shall not be compelled, under any pretext whatsoever, to pay any ordinary charges, requisitions, or taxes, greater than those that are paid by native citizens, of the contractive parties respectively. . Opinion of the Attorney General, 42 Op. Atty.Gen.No.28 (April 1, 1968), at pp. 1-2. Provisions similar to Article X are found in treaties with China, Costa Rica, Ireland, Italy, Paraguay, Spain, Swiss Confederation, Thailand and Yugoslavia. . See Astrup v. INS, 402 U.S. 509, 91 S.Ct. 1583, 29 L.Ed.2d 68 (1971). . This time has been extended, we were advised on oral argument, by the employer, and this opinion assumes that such an extension is in effect. . While ILWU Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954), has never been expressly overruled, it has been politely overlooked by the Supreme Court for at least ten years. . The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether" }, { "docid": "15564411", "title": "", "text": "entry. Volpe did not involve any question of abandonment. Of course, if petitioner had become a member of the Communist Party after the entry of October 8, 1938, or the re-entry of September 1939, he would have been deportable under § 4 (a). Galvan v. Press, 347 U. S. 522. But it is admitted that he was not a member of that party at those times or “at any time thereafter.” Likewise, if he had applied for entry after June 27, 1952, he would be excludable under § 212 (a) (28) (C) (iv) of the Immigration and Nationality Act of 1952. 66 Stat. 182, 8 U. S. C. § 1182 (a)(28)(C)(iv). The Government argues that the construction which we adopt would enable a resident alien, who after lawfully entering the United States for permanent residence became a member of the Communist Party, to avoid deportation for that cause simply by quitting the party and thereafter stepping across the border and returning. While a resident alien who leaves the country for any period, however brief, does make a new entry on his return, he is then subject nevertheless to all current exclusionary laws, one of which, at present, excludes from admission any alien who has ever been a member of the Communist Party. Section 212 (a) (28) (C) (iv) of the Immigration and Nationality Act of 1952, supra. If he enters when excludable, he is deportable, even though he would not have been subject to deportation if he had not left the country. Hence, our construction of the statutes here involved does not enable an alien resident to evade the deportation laws by leaving the country and returning after a brief period, for if at the time of his return he is within an excluded class he would be excludable, or, if he nevertheless enters, he would be deport-able. It is admitted that when petitioner returned from Mexico after his one-day trip in September 1939 he was not excludable under then current exclusionary laws. That entry, being lawful, can only support our conclusion in this case. Though §§ 1 and 4" }, { "docid": "1354155", "title": "", "text": "determined that the described woman was indeed his mother. Upon locating her, he made immediate plans to return with her to this country; however, he was advised by the American Consul in Mexico City that the mother, ineligible for an immigration visa, would not be permitted to enter and remain in the United States. She died in Mexico in 1953. Appellant then spoke to the American Consul and was told that he himself had become ineligible to return permanently to the United States. He was denied entry which he sought at San Ysidro, California, but, finally, on June 12, 1961, he was paroled into this country for a period of three days so that he might attend the funeral of his mother-in-law. He did not return to Mexico upon the expiration of the last extended time of the parole, and the exclusion proceeding was instituted. Essentially, appellant presents two issues, (1) whether he was denied full opportunity to present evidence of eligibility for discretionary relief under sections 211(b) and 212(c) of the Immigration and Nationality Act of 1952 (8 U.S.C. §§ 1181(b), 1182(c) (1964)), and (2) whether the order denying the petition for habeas corpus was supported by substantial evidence. Section 212(c) (8 U.S.C. § 1182(c)) provides, “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not un der an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of * * * [paragraph 212(a) (20)] of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.” (Emphasis added.) ' Section 211(b) (8 U.S.C. § 1181(b)) provides, “Notwithstanding the provisions of section 1182(a) (20) of this title, in such cases or in such classes of cases and under such conditions as may be by regulations prescribed, otherwise admissible aliens lawfully admitted for permanent residence who depart from the United States temporarily may be readmitted to the United" }, { "docid": "4432286", "title": "", "text": "would be able to keép his job, much less advance himself, without going to Tel Aviv is doubtful. In any event, he has been directed by his employer to go. In a general sense Itzcovitz “intends” to go to Tel Aviv, just as Fleuti intended to go to Mexico. But appellant is not in the posture of having taken the trip in disregard of the immigration consequences; rather he has here sought relief in advance. The purpose of his trip is entirely bona fide, honorable and lawful. He has every intention of retaining permanently his residence in the United States. And, indeed, the sole purpose of the three week trip is to qualify him for more useful employment service as he continues his permanent residence. Under these circumstances — and we consider them limited — we do not think appellant’s trip to Tel A„viv will be “meaningfully interrup-tive” of his permanent residence “within the meaning and ameliorative intent of the exception to § 101(a) (13).” Rosenberg v. Fleuti, supra, 374 U.S. at 461, 462, 83 S.Ct. at 1812. Our task in this, a case of statutory interpretation, has been made a little easier since Congress has had the gloss of Fleuti before it, for seven years, without tightening subsection (13) of the statute, or indeed changing it, even while changing provision after provision of subdivision (a) of § 101. Accordingly, we reverse and remand with direction to the court below to grant appellant’s motion for summary judgment and declare that appellant may take his proposed business trip. . The Treaty of Friendship, Commerce and Navigation between the United States and Argentina, July 7, 1853, 10 Stat. 1005, hereinafter the Argentine Treaty. . Section 315, 8 U.S.C. § 1426; Section 212 (a) (22), 8 U.S.C. § 1182(a) (22). . Article X of the Argentine Treaty provides : The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions" }, { "docid": "1354156", "title": "", "text": "Act of 1952 (8 U.S.C. §§ 1181(b), 1182(c) (1964)), and (2) whether the order denying the petition for habeas corpus was supported by substantial evidence. Section 212(c) (8 U.S.C. § 1182(c)) provides, “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not un der an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of * * * [paragraph 212(a) (20)] of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.” (Emphasis added.) ' Section 211(b) (8 U.S.C. § 1181(b)) provides, “Notwithstanding the provisions of section 1182(a) (20) of this title, in such cases or in such classes of cases and under such conditions as may be by regulations prescribed, otherwise admissible aliens lawfully admitted for permanent residence who depart from the United States temporarily may be readmitted to the United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation.” (Emphasis added.) The evidence which appellant would have introduced in a reopened hearing could not have established his eligibility for discretionary relief. In his “Reply to Rebuttal of Appellee’s Rebuttal,” it is said, “The Appellant at the time of his exclusion proceedings was not in possession of, nor did he have under his control, the document to prove his lawful entry and lawful residence in the United States. This document was subsequently discovered and was the basis for the Petition to Reopen and Reconsider the exclusion hearings. This is the point which the Appellant presses on Appeal for the purpose of qualifying for the relief provided for under the law as stated * * * [8 U.S.C. §§ 1181(b), 1182(c)].” (Emphasis added.) Had the hearing been reopened and the document received, it could have proved no more than that appellant was “an alien lawfully admitted for permanent residence.” This fact was not dispositive." }, { "docid": "1404986", "title": "", "text": "appeal that he was not excluda-ble, the BIA reasoned. A.R. 3. Finally, the BIA sustained the IJ’s determination that Selimi was not eligible for a section 212(d)(ll) waiver of excludability. The Board noted that Selimi admitted that he had traveled to Macedonia in 1993 in response to his wife’s entreaties that he bring her to the United States, that he had subsequently returned to the United States in the company of his cousin as well as his wife and children, and that he knew his cousin’s falsified passport listed one of his children as her own. In view of that evidence, the Board concluded, the IJ cor rectly found that Selimi had attempted to assist his cousin’s unlawful entry into the United States and that he was therefore ineligible for relief under section 212(d)(ll). A.R.3. II. On review of the BIA’s order, Selimi makes four principal arguments. First, Selimi contends that as a lawful permanent resident of the United States, he should have been placed in deportation rather than exclusion proceedings. He next contends that he was deprived of due process because the government never established by clear, convincing, and unequivocal evidence that he was excludable. He goes on to suggest that he was coerced into conceding his excludability by the INS. Finally, he contends that the Board improperly denied him a waiver of excludability. Selimi first suggests that the INS should have placed him in deportation rather than exclusion proceedings. Prior to the Immigrant Reform and Responsibility Act of 1996, there was a long-recognized distinction between exclusion proceedings, which concerned aliens who were seeking entry into the United States, and deportation proceedings, which dealt with aliens already present in this country. See Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). Aliens in deportation proceedings enjoyed a variety of procedural protections that those in exclusion proceedings did not. Id. at 25-27, 103 S.Ct. at 325-26. The INS placed Selimi in exclusion proceedings because although he had been admitted to lawful permanent residency in the United States, he had left the country for purposes" }, { "docid": "4432274", "title": "", "text": "without conceding his eligibility for citizenship, and affirmed to the court that “upon [Itzeovitz’s] return” he would “not be subject to an exclusion proceeding and will be deemed to have resumed his permanent resident status.” Subsequently, on February 10, 1970, the District Director of INS notified the United States Attorney for the Southern District of New York that “steps have been initiated to have Mr. Itzeovitz’s name removed from our Service lookout book.” He had returned on January 24, 1970. His appeal was then dismissed as moot by the panel in a per curiam opinion noting that “the government has conceded the propriety of admitting Itzcovitz into the country, and the parties have informed us of his return.” Itzcovitz v. Selective Service Local Board No. 6, 422 F.2d 828 (2d Cir. 1970). Only after the Immigration Service had ignored letters written on March 12, June 18 and September 23, 1970, inquiring whether a brief departure from the country would result in his classification as an excludable alien on his return, did appellant institute this action for declaratory judgment. Appellant alleges that he is employed by El A1 Israel Airlines as a passenger agent at Kennedy International Airport, and that one of El Al’s employment requirements is a three-week course, given in Tel Aviv, on the prevention of airline hijackings. El A1 requested that the plaintiff attend a session to be conducted from October 18 until November 10, 1970. Both appellant and INS moved for summary judgment below, INS claiming, among other things, that as an alien ineligible for citizenship under § 315(a) of the Act, 8 U.S.C. § 1426(a), Itzcovitz may be an excludable alien under § 212(a) of the Act, 8 U.S.C. § 1182(a) (22). We disagree with the conclusion of the court below that this controversy is not ripe for adjudication. Having once been unlawfully excluded, appellant rightfully wonders whether a two- or three-week departure on employer’s business would raise again the spectre of exclusion, this time possibly without the grace of an INS retrenchment allowing appellant to re-enter and resume his status as a permanent resident alien." }, { "docid": "4432269", "title": "", "text": "OAKES, Circuit Judge: Appellant, Diego Ricardo Itzcovitz, a permanent resident alien, seeks a declaratory judgment enabling him to leave the United States for a brief time and a limited purpose, without the threat of being declared an excludable alien upon his return. The purpose of his proposed trip is to attend a special training course in Tel Aviv conducted by his employer, El A1 Israel Airlines. He asserts and the Government concedes that, because he exercised his treaty right as an Argentine national to claim exemption from U. S. military service, he would be excludable upon re-entry into the United States, under the provisions of the Immigration and Nationality Act of 1952, 66 Stat. 163 as amended, and his name would therefore be placed in the “Lookout Book,” the Immigration and Naturalization Service’s list of currently excludable aliens who might be seeking re-entry, apparently distributed to INS agents at points of entry into the United States. Appellant contends that insofar as the provisions of the Immigration and Nationality Act of 1952 do brand him an excludable alien, the provisions place an impermissible burden on his rights under the Argentine Treaty which, incidentally, is similar to fifteen other treaties, principally of Friendship, Commerce and Navigation in granting exemption from military service. Appellant concedes for purposes of this appeal that by exercising his treaty right he has waived his eligibility for citizenship under Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), but he argues that such a waiver does not mean he may be declared an excludable alien. Alternatively, appellant claims that as an alien lawfully admitted for permanent residence, temporarily leaving the country at the behest- and under the requirements of his employer, he would not be making an “entry” into the United States upon his return from Israel. The court below did not reach the merits, but found the case unripe, and dismissed the action for lack of a “justi-ciable controversy,” without prejudice to appellant’s right later to seek relief from an exclusion order, if and when issued. We disagree with the court below" }, { "docid": "4432271", "title": "", "text": "and think that appellant should not be forced into the cul de sac of leaving the country, only to be “subjected,” on his return, “to the wearisome routine of immigration procedure as though [he] had never lived here,” ILWU Local 37 v. Boyd, 347 U.S. 222, 226, 74 S.Ct. 447, 449, 98 L.Ed. 650 (1954) (dissenting opinion), and the probability, in this case, of exclusion. Our view is taken from the perspective of the extensive INS-Itz-covitz history, and has in sight the concession made on argument that appellant would upon departure immediately take his place in the pages of the “Lookout Book.” That extensive history follows. Appellant came to this country from Argentina with his parents in 1966 and was admitted as a permanent resident alien. Although he had completed his Argentine military obligation, he was required as a permanent resident alien of draft age to register with our Selective Service System. 50 U.S.C.App. § 453. He did so and was classified I-A on October 24, 1966. On March 29, 1967, he received a notice to report for induction. The Argentine Consulate in New York advised him that he was entitled to exemption from military service pursuant to the Argentine Treaty, and he thereupon applied to our Department of State for exemption. Despite the State Department’s best efforts, Itzcovitz was advised by Selective Service, erroneously, as it later turned out, that the draft exemption granted by the Treaty had been impliedly abrogated by the passage of the Selective Service Act. On May 22, 1967, one day before he was required under threat of arrest and prosecution to report for induction, he left the United States and was reclassified IV-C as an alien who had fled to avoid military service. On December 16, 1968, Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), held that there may be pre-induction judicial review of the classification of a registrant for the purposes of determining the applicability of unequivocal statutory exemptions. Three weeks later Itzcovitz sued for injunctive relief against the Selective Service System’s outstanding induction order and" }, { "docid": "4432278", "title": "", "text": "under 28 U.S.C. § 2201. We do not reach the question of the apparent clash between appellant’s rights under the treaty and the immigration laws, for we conclude that appellant’s return to the United States after his proposed trip to Tel Aviv would not constitute an “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a) (13), and the INS would therefore have no authority to exclude him under § 212, 8 U.S.C. § 1182, Rosenberg v. Fleuti, 374 U.S. 449, 452, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). We reach this result having in mind not the history of Itzcovitz's case but the history of § 101(a) (13) of the Act. As early as 1947, this court, in an opinion by Chief Judge Learned Hand, held that an alien convicted of robbery did not re-enter the United States when he went by sleeping car from Buffalo to Detroit, passing through Canada en route. Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947). The alien was held to have “a vested interest in his residence,” and was not to “be subject to meaningless and irrational hazards”; while he could have learned by inquiry that the train would take him out of the United States and back into it, there was no evidence that he “knew or had any intention of leaving the United States or of entering Canada.” 158 F.2d at 878-879. Pointing out that “[djeportation can be the equivalent of banishment or exile,” the Supreme Court eleven months after Di Pasquale, supra, relied upon it and followed it, in Delga-dillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947). There an alien merchant seaman, also later convicted of robbery, was rescued after his ship was torpedoed in World War II and taken to Havana, Cuba; his re-entry into the United States by way of Florida was held not to be an “entry” within the Act as it then read, the Court noting that “the exigencies of war, not his voluntary act, put him on foreign soil.”" }, { "docid": "22647358", "title": "", "text": "do not. The majority not only blesses this unequal treatment, but goes much further, overruling more than 60 years of precedent, approving an unconstitutional statutory scheme not even the Board of Immigration Appeals endorses, and implicitly declaring unconstitutional a federal regulation. I respectfully dissent. I First, some background. Prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 (“IIRIRA”), there were separate proce dures and substantive rules relating to (1) the deportation of persons already present in the United States, and (2) the exclusion of persons seeking entry. Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1122 (9th Cir.2002). The INA defined deportable aliens in § 241, 8 U.S.C. § 1251 (transferred to § 237, 8 U.S.C. § 1227), and excludable aliens in § 212(a), 8 U.S.C. § 1182. The exclusion procedures did not only apply to those seeking entry into the United States in the first instance. If a non-citizen residing in the United States temporarily left the country, he could be excluded from re-entry. Lawful permanent residents (“LPRs”) are, of course, non-citizens who have successfully satisfied statutory requirements and earned the favorable exercise of discretion by the government to be allowed to reside in the United States permanently. Although a permanent resident, an LPR still could be deported if he committed a qualifying crime. If he left the country temporarily, he could also be excluded upon return if he had committed a qualifying offense. An LPR, as a non-citizen seeking entry, would generally be subject to the same proceedings and grounds of exclusion if he traveled abroad and returned to the United States. See INA §§ 101(a)(3) & (13), 66 Stat. 166, 167 (1952). Facing a large volume of cases in which a waiver of exclusion was sought in compassionate cases involving LPRs, Congress afforded certain qualifying LPRs the protection of subsection (c): Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard" }, { "docid": "642867", "title": "", "text": "the BIA was dismissed on May 11, 1984. Garcia’s appeal of the BIA’s decision was dismissed by this Court in January, 1985. In the meantime, on August 31, 1984, Garcia had filed a motion with the BIA to reopen his deportation proceedings so he could apply for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(c). The BIA denied Garcia’s motion to reopen on November 27, 1984 on the ground that Garcia was statutorily ineligible for section 212(c) relief since his lawful permanent resident status had been terminated administratively before he applied. Before us is Garcia’s appeal of the BIA’s decision refusing to reopen the case. DISCUSSION Garcia reliés upon section 212(c), 8 U.S.C. § 1182(c) of the Immigration and Nationality Act of 1952. Section 212(c) provides: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an or der of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (l)-(25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. Although section 212(c) on its face only applies to excludable lawful permanent resident aliens who are trying to reenter the United States, the well-established policy of the INS is to allow deportable permanent resident aliens also to seek a waiver under section 212(c). In re Silva, 16 I & N Dec. 26 (BIA 1976). The practice of allowing aliens to seek such discretionary relief from deportation is a long-standing one which existed under section 212(c)’s predecessor, known as the Seventh Proviso. To be eligible for discretionary relief under section 212(c), the alien must (1) be “lawfully admitted for permanent residence” and (2) have “a lawful unrelinquished domicile of seven consecutive years.” This case before us focuses exclusively on the issue of lawful permanent resident status. The BIA found" }, { "docid": "4432275", "title": "", "text": "for declaratory judgment. Appellant alleges that he is employed by El A1 Israel Airlines as a passenger agent at Kennedy International Airport, and that one of El Al’s employment requirements is a three-week course, given in Tel Aviv, on the prevention of airline hijackings. El A1 requested that the plaintiff attend a session to be conducted from October 18 until November 10, 1970. Both appellant and INS moved for summary judgment below, INS claiming, among other things, that as an alien ineligible for citizenship under § 315(a) of the Act, 8 U.S.C. § 1426(a), Itzcovitz may be an excludable alien under § 212(a) of the Act, 8 U.S.C. § 1182(a) (22). We disagree with the conclusion of the court below that this controversy is not ripe for adjudication. Having once been unlawfully excluded, appellant rightfully wonders whether a two- or three-week departure on employer’s business would raise again the spectre of exclusion, this time possibly without the grace of an INS retrenchment allowing appellant to re-enter and resume his status as a permanent resident alien. The Immigration Service admits and makes it very clear — clearer to us, perhaps, than it did to the court below— that it would seek to exclude appellant after his sojourn in Tel Aviv. Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), tells us that the ripeness doctrine “is to prevent the courts * * * from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized * * We are required to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. 149, 87 S.Ct. 1515. We believe there is hardship in the case of this appellant, who has spent years seeking to retain his permanent resident alien status and is still left to guess whether he can go to Israel for a brief training course required by his employer. His case is not abstract, nor the issue without" } ]

[ { "docid": "12159216", "title": "", "text": "in general that if an interception is conducted in violation of Title III, the results of the interception and evidence developed from the interception are not admissible in evidence in a number of types of proceedings, including grand jury proceedings and criminal trials. Specific grounds for suppression are set out in § 2518(10)(a). Moreover, a person who is aggrieved by an unlawful interception is given a civil action for damages, both actual and punitive, and, in addition, may recover a reasonable attorney’s fee. 18 U.S.C. § 2520. As far as this case is concerned, the most important section of the statute is 18 U.S.C. § 2518, the various subdivisions of which prescribe procedures for the obtaining of wiretap authority, the conditions under which such authority may be granted, the persons who must be identified as those whose communication's will be intercepted, the findings that must be made before authority can be granted, and the proceedings that must take place after an authorized interception has come to an end or after the authorized period for an interception has expired. It is established that not every violation of § 2518 calls for suppression; minor violations or noncompliance may be ignored. However, it is also established that if there is a substantial violation of a provision of the statute that is central or functional in promoting the congressional purpose to prevent abuses in wiretapping, suppression may be required even though the violations do not amount to constitutional deprivations. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). See also, in addition to the Eighth Circuit cases cited heretofore, United States v. Donovan, 513 F.2d 337 (6th Cir. 1975); United States v. Bernstein, 509 F.2d 996 (4th Cir. 1975); United States v. Doolittle, 507 F.2d 1368, adhered to on rehearing en banc, 518 F.2d 500 (5th Cir. 1975); United States v. Chun, 503 F.2d 533 (9th Cir. 1974); and United States" } ]

[ { "docid": "5052873", "title": "", "text": "a defense to contempt proceedings under 28 U.S.C. § 1826(a) (1970)). Instead, as previously noted, dismissal rests in the sound discretion of the Court. Moreover, as the Supreme Court has noted “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful’ ” To the contrary, suppression is required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the Congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), quoting United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1975) and Giordano, supra 416 U.S. at 527, 94 S.Ct. 1820. Thus the proper procedure in deciding what, if any, sanction is appropriate requires an examination of the purpose to be served by the Title III requirement which has been violated and a decision as to whether that purpose has been frustrated by the violation. Cf. Donovan, supra 429 U.S. at 433-40, 97 S.Ct. 658; Stone v. Powell, 428 U.S. 465, 482-89, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 348-52, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Marion, supra at 703-04; United States v. Vento, 533 F.2d 838, 855 (3d Cir. 1976); Brodson, supra at 216-17. While undertaking this examination, the Court is aware of the Second Circuit’s admonition that strict compliance with section 2517(5) is essential and that any deviation must be strictly construed so as not to render the strictures of Title III nugatory. Marion, supra at 706. Title III was designed in part to prevent the government from obtaining] an overly broad wiretap authorization for one offense as a pretext for gaining information with respect to offenses for which probable cause could not be established or for which wiretap authorization would be unavailable. United States v. Masciarelli, 558 F.2d 1064, 1067 (2d Cir. 1977). In order to prevent such" }, { "docid": "14472625", "title": "", "text": "in the applications for and the orders authorizing surveillance. Defendants do not contend that the government failed to disclose any prior applications concerning those individuals who were actually named in the applications and orders for surveillance at 98 Prince Street and 51 North Margin Street. Furthermore, the statute “does not require disclosure of information about pri- or interceptions, but only of information about prior applications. ” United States v. Florea, 541 F.2d at 576 (emphasis in original). The government thus had no obligation to disclose the results of prior interceptions in its applications. I conclude that the government did not violate the provisions of 18 U.S.C. § 2518(l)(e). Defendants’ motion to suppress on this ground must be denied. In any event, several courts have concluded, in the aftermath of the Supreme Court’s decision in United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), that suppression is an inappropriate remedy for violations of § 2518(l)(e). See, e.g., United States v. Abramson, 553 F.2d 1164, 1169-70 (8th Cir.), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977); United States v. Sullivan, 586 F.Supp. 1314, 1320-23 (D.Mass.1984); United States v. Harvey, 560 F.Supp. 1040, 1070-72 (S.D.Fla.1982). In Donovan, the Supreme Court reiterated its holding that, under Title III, suppression is required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Donovan, 429 U.S. at 433-34, 97 S.Ct. at 671, citing United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). The Court stated that a violation of § 2518(l)(b)(iv), requiring that an application for an intercept order identify those persons the government has probable cause to believe are committing the offense and whose communications are expected to be intercepted, “could hardly invalidate an otherwise lawful judicial authorization.” United States v. Donovan, 429 U.S. at 435, 97 S.Ct. at 671. Therefore, suppression was not required. A similar" }, { "docid": "22457777", "title": "", "text": "Order.” The order also required that “all monitoring or oral communications shall be conducted in such a way as to minimize the interception and disclosure of the communications intercepted to those communications relevant to the pending investigation in accordance with the minimization requirements of Chapter 119 of Title 18 of the United States Code.” See 18 U.S.C. § 2518(5). Defendants concede that government agents did not place bugs in Apker’s bedrooms or bathrooms. They argue, however, that the order prohibited seizing conversations occurring in these rooms and that government agents became aware during the course of the intercept that they were intercepting sounds from the basement bathroom. At the suppression hearing, defendants introduced a number of tapes containing conversations accompanied by the sounds of a toilet flushing, a person urinating, and the opening and closing of a safe, which agents diseover-ed under the basement bathroom vanity during a search of Apker’s home conducted subsequent to the oral interceptions. Title 18 U.S.C. § 2515 provides that the contents of any wire or oral communication, and evidence derived therefrom, may not be received in evidence “if the disclosure of that information would be in violation of this chapter.” The specific grounds for suppression are set forth in Section 2518(10)(a): (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a)(i)-(iii). The district court determined that the violation of the statute did not require suppression, relying on United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); and United States v. Civella, 533 F.2d 1395 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). These cases addressed whether suppression was required for failure to comply literally with particular statutory procedures set forth in Section 2518. See Chavez, 416 U.S. at 570-71, 575, 94 S.Ct. at 1853-54, 1856 (failure" }, { "docid": "21043350", "title": "", "text": "] [was] necessary in each situation for an abuse of discretion.” Brown, 761 F.2d at 1275 (citations omitted). We do not believe the district court abused its discretion in finding the wiretap placed on the three telephones was necessary. There was a substantial basis to find probable cause existed tied both to statements of confidential informants, the results of police surveillance, and the documentation from pen registers in the investigation. We, thus, defer to the district court’s finding the wiretap was necessary for investigating authorities to determine the nature and scope of codefendants’ criminal activity. B. Failure to Identify Defendant Aguirre As an additional basis for suppression, Mr. Aguirre contends the failure to name him in the application for wiretap under 18 U.S.C. § 2518(4)(a) and to provide him with inventory notice under 18 U.S.C. § 2518(8)(d) invalidated the wiretap authorization and requires suppression of his conversations introduced into evidence. Mr. Aguirre relies on United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), which held the government must name those individuals it has probable cause to believe are engaged in the criminal activity under investigation and whose conversations are expected to be intercepted. Albeit this holding, the Donovan Court, relying on U.S. v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), reiterated that “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” Donovan, 429 U.S. at 433, 97 S.Ct. at 671 (citation omitted). The remedy of suppression is required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” Id. (citation omitted). The Court found that “[i]n no meaningful sense” did the failure to identify an additional subject invalidate the authorization. Id. at 436, 97 S.Ct. at 672. Surely, in this case, all" }, { "docid": "11116090", "title": "", "text": "by the wiretapping statute. Under this reading, however, sections 551(b)(2) through 551(b)(5) would be “drained of meaning,” United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974), and would become mere surplusage, United States v. Giordano, 416 U.S. 505, 526, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341 (1974). Although Congress may have intended just such redundancy, the Supreme Court has held that it did not, and we can perceive no special local interest justifying a conclusion that Congress intended the phrase “unlawfully intercepted” to have a different meaning under the District of Columbia’s wiretapping statute than under Title III. Our analysis of the legality of the interceptions must begin, therefore, with the Supreme Court’s opinions in Giordano and Chavez, which held that not “every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. at 574-75, 94 S.Ct. at 1855-1856. “To the contrary, suppression is required only for a ‘failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658 (1977) (quoting United States v. Giordano, 416 U.S. at 527, 94 S.Ct. at 1832). Implicit in the Court’s opinions, which devote considerable attention to the purposes underlying the statutory requirements at issue, is the principle that violations of even these central requirements do not mandate suppression if the Government demonstrates to the court’s satisfaction that the statutory purpose has been achieved despite the violation. We will focus our inquiry on these considerations in determining whether the communications that led to the appellants’ convictions were “unlawfully intercepted” within the meaning of section 551(b)(1). B. Possible Grounds for Suppression 1. Defective Authorization The appellants’ principal objection to the wiretapping procedures followed by the Government in these cases is that the United States Attorney failed to authorize Brewer’s applications in writing as" }, { "docid": "19653579", "title": "", "text": "any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). “To the contrary, suppression is required [under paragraph (i) ] only for a ‘failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (quoting Giordano, 416 U.S. at 527, 94 S.Ct. 1820). While paragraphs (ii) and (iii) of § 2518(10)(a) “must be deemed to provide suppression for failure to observe some of the statutory requirements that would not render interceptions unlawful under paragraph (i),” Giordano, 416 U.S. at 527, 94 S.Ct. 1820, “every circuit to consider the question has held that § 2518(10)(a)(ii) does not require suppression if the facial insufficiency of the wiretap order is no more than a technical defect.” United States v. Moore, 41 F.3d 370, 374-75 (8th Cir.1994) (citing cases from the Second, Third, Fifth, Sixth, and Ninth Circuit Courts of Appeals). Indeed, as represented accurately by the Moore court, we have held that suppression is not required for “ ‘every minor facial insufficiency.’ ” United States v. Vigi 515 F.2d 290, 293 (6th Cir.1975) (quoting United States v. Acon, 513 F.2d 513, 517 (3d Cir.1975)). Before trial, Gray, joined by Jackson, filed motions to suppress the Title III intercepts and video surveillance that were used in the investigation on the ground that the government failed to comply with the statutory prerequisites of the surveillance application process. In its subsequent decision denying defendants’ motions to suppress, see United States v. Gray, 372 F.Supp.2d 1025 (N.D.Ohio 2005), the district court explained the factual background giving rise to defendants’ claims: The wiretaps originated with a January 15, 2002, application submitted by David A. Sierleja, an attorney of the DOJ. Sierleja made the application as an investigative or law enforcement officer under Title III. [18" }, { "docid": "5052872", "title": "", "text": "is a party as such to a grand jury proceeding, the pro vision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury which is enforcible by an individual. (Blue v. United States, 86 S.Ct. 1416, 384 U.S. 521 (1965).) There is no intent to change this general rule. S.Rep. No. 1097, supra at 106, quoted in 2 U.S.Code Cong. & Admin.News, supra at 2195 (emphasis supplied). Both the case law and the legislative history of Title III indicate that dismissal of an indictment is neither the exclusive nor the mandatory remedy for a violation of section 2517(5). This conclusion, however, should not be interpreted to mean that dismissal is never the appropriate remedy for violation of section 2517(5) or that the suppression procedure under 18 U.S.C. § 2518(10)(a) (1970) is the only avenue available to a defendant for a violation of section 2517(5). Cf. Gelbard, supra (section 2515 a defense to contempt proceedings under 28 U.S.C. § 1826(a) (1970)). Instead, as previously noted, dismissal rests in the sound discretion of the Court. Moreover, as the Supreme Court has noted “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful’ ” To the contrary, suppression is required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the Congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), quoting United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1975) and Giordano, supra 416 U.S. at 527, 94 S.Ct. 1820. Thus the proper procedure in deciding what, if any, sanction is appropriate requires an examination of the purpose to be served by the Title III requirement which has been violated and a decision" }, { "docid": "1317806", "title": "", "text": "numbers of the lines to be tapped. According to all available telephone company records, the Brunos had only two telephones in their residence. Upon the installation of the wiretap the Government tapped one of the lines specifically listed in the order, and by mistake and mere coincidence tapped the line to which the “bootleg” phone was connected. Appellants submit that since the “bootleg” telephone number was not specifically listed in the wiretap order the Government lacked authority to tap that line; therefore, the argument continues, all evidence derived from the wiretap of the “bootleg” phone must be suppressed. The district court refused suppression on the basis that probable cause did exist to wiretap each telephone located in the Bruno residence, including the “bootleg” phone, and that nothing in the language of Title III requires the Government to specify the telephone numbers of the telephone lines it seeks to tap. The district court further held that even if Title III so required the particularization of telephone numbers in the wiretap order suppression was not required in view of the fact that “ ‘[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications “unlawful.” ’ ” United States v. Donovan, 429 U.S. 413, 433, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), quoting United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Relying on Donovan the district court found that since the Government did not fail “ ‘to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device,’ ” 429 U.S. at 433-34, 97 S.Ct. at 671 quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), suppression was not required. We agree. The major flaw in the appellants’ position is the contention that the Government lacked authority to tap the “bootleg” telephone. Initially it is important to note that the district court found" }, { "docid": "9923628", "title": "", "text": "Keefer Place was illegal and the subsequent confession involuntary, his incriminating statement should be suppressed. Judge Pratt denied both motions. On January 6,1982 a stipulated, non-jury trial was held. Robinson was found guilty and was sentenced to three years on each count, the terms to be served concurrently. This appeal was noted on March 8, 1982. II. Analysis Appellant presents four challenges to his conviction: (1) that the government failed to follow the statutorily-required electronic surveillance procedures; (2) that the March 26 arrest violated his Fourth Amendment rights; (3) that his confession was involuntary; and (4) that the government failed to prove an essential element of interstate transportation of stolen goods. We address these arguments in order below. A. Electronic Surveillance Procedures 1. Standards for suppression Appellant’s contention is that the government failed to follow several statutory requirements for obtaining and using the electronic listening device. He argues that these failures to follow proper procedures necessitate suppression of all electronically obtained evidence since the communications were “unlawfully intercepted” within the meaning of both 18 U.S.C. § 2518( 10)(a)(i) (1976 & Supp. V 1981) and 23 D.C.Code § 551(b)(1) (1981). To evaluate these arguments, we must first set forth the standards governing suppression. The Supreme Court has made clear that not “every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. 562, 574-575, 94 S.Ct. 1849, 1855-1856, 40 L.Ed.2d 380 (1974). The suppression remedy would be warranted only when the government “fail[s] to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Donovan, 429 U.S. 413, 433-434, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974)). This court has recently addressed itself to these Supreme Court opinions in United States v. Johnson, 696 F.2d 115 (D.C.Cir.1982). We held" }, { "docid": "9923629", "title": "", "text": "§ 2518( 10)(a)(i) (1976 & Supp. V 1981) and 23 D.C.Code § 551(b)(1) (1981). To evaluate these arguments, we must first set forth the standards governing suppression. The Supreme Court has made clear that not “every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. 562, 574-575, 94 S.Ct. 1849, 1855-1856, 40 L.Ed.2d 380 (1974). The suppression remedy would be warranted only when the government “fail[s] to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Donovan, 429 U.S. 413, 433-434, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974)). This court has recently addressed itself to these Supreme Court opinions in United States v. Johnson, 696 F.2d 115 (D.C.Cir.1982). We held that in evaluating the need for suppression of electronically obtained evidence, we shall be guided by the principle implicit in the above opinions — “that violations of even these central [statutory] requirements do not mandate suppression if the Government demonstrates to the court’s satisfaction that the statutory purpose has been achieved despite the violation.” 696 F.2d at 121 (footnote omitted). We will therefore focus on these considerations in evaluating appellant’s claims that the conversations in the Royal Carpet were “unlawfully intercepted” and that all evidence derived therefrom must be suppressed. 2. Authorization of application Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976 & Supp. V 1981) prescribes the procedures for obtaining the necessary judicial approval of electronic surveillance. The statute provides in pertinent part: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for * * * an order authorizing or approving the interception of wire or oral communications" }, { "docid": "812118", "title": "", "text": "no violation of § 2518(l)(e), we ordinarily would not reach the government’s fallback position, that suppression is not warranted even if there were a violation. However, because the § 2518(l)(e) issue involves a question of law on which the Court of Appeals for this Circuit has yet to speak, we shall address the suppression issue as well. A. Not every failure to comply fully with the requirements of Title III renders the interception of wire or oral communications “unlawful” for purposes of Section 2518(10)(a)(i). United States v. Chavez, 1974, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380. “To the contrary, suppression is required only for a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341; United States v. Donovan, 1977, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652. Courts have indicated that suppression may also be ordered where there is an intentional failure on the part of the government to comply with any Title III requirement. See Donovan, supra; United States v. Harrigan, 1 Cir.1977, 557 F.2d 879. Regarding the first ground for suppression, whether a statutory requirement “directly and substantially implements congressional intention” can be determined in either of two ways: first, by ascertaining whether the information required by the particular provision plays a “substantive role” with respect to judicial authorization of the tap; and second by looking to see whether the legislative history indicates that Congress intended the provision to play “a central, or even functional role in guarding against unwarranted use of wiretapping or electronic surveillance.” Chavez, supra, Donovan, supra. The “substantive role” criterion is met by showing that the information to be provided would detract from the sufficiency of the factors which the issuing judge must find to be present if a wiretap order is to issue, namely: that normal investigative techniques have failed or are unlikely to succeed and there is probable" }, { "docid": "1317807", "title": "", "text": "view of the fact that “ ‘[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications “unlawful.” ’ ” United States v. Donovan, 429 U.S. 413, 433, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), quoting United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Relying on Donovan the district court found that since the Government did not fail “ ‘to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device,’ ” 429 U.S. at 433-34, 97 S.Ct. at 671 quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), suppression was not required. We agree. The major flaw in the appellants’ position is the contention that the Government lacked authority to tap the “bootleg” telephone. Initially it is important to note that the district court found the wiretap applications contained sufficient information to establish probable cause to wiretap any telephone located in the Bruno residence. Moreover, nothing in the language of Title III requires the Government in its application or the district court in its order to include the number of the telephone line that is to be tapped. Section 2518(4) of Title 18 specifies what must be included in a wiretap order: Each order authorizing or approving the interception of any wire or oral communication shall specify— (a) the identity of the person, if known, whose communications are to be intercepted; (b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; (c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and (e) the period of time during which such interception is authorized, including a statement as" }, { "docid": "8982912", "title": "", "text": "circumstances which require suppression under § 2515 are, in turn, set out in § 2518(10)(a): (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. Only the first category is relevant to this case, since there is no contention that the orders were insufficient and it is manifest that the duty to record is imposed by the statute itself and not by judicial order. We must decide whether the communications introduced at trial, constituting the recorded conversations at London’s office, were “unlawfully intercepted” because of the failure to record other dialogue between the co-conspirators. Resolution of that issue depends upon three Supreme Court decisions: United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); and United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). These decisions hold that “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974). Rather, suppression is required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. at 527, 94 S.Ct. at 1832. In other words, the violation must substantially impinge upon Fourth Amendment values sought to be protected by Congress in restricting and rendering uniform the use of wiretaps. The recording provision, contained in § 2518(8)(a), was enacted to serve an evidentiary function. Congress apparently realized that testimony by monitoring agents of what they heard would be open to attack on grounds of hearsay, failure of recollection and bias. Tape recordings, on the other hand, would be" }, { "docid": "18848425", "title": "", "text": "phone should have been disclosed to Judge Spellman in the original application and incorporated affidavit as the Government intended but inadvertently failed to do. The issue is whether the Government’s inadvertent failure to disclose the prior application to Judge Spell-man in the original application warrants suppression. As the Supreme Court has held, not every failure to comply with any requirement of Title III renders the interception “unlawful.” United States v. Donovan, 429 U.S. 413, 433, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977), citing United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). In United States v. Abramson, 553 F.2d 1164, 1168-71 (8th Cir.), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977), the Government failed to state in the application that wiretap evidence obtained pursuant to a prior application which was disclosed was suppressed. The court held that the government had failed to comply with § 2518(1)(e). However, the court correctly looked to § 2518(10)(a), and the Supreme Court’s construction of that section in United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), to determine whether suppression was mandated. As in Donovan and Abramson, the only basis for suppression under § 2518(10)(a) applicable to this case is subsection (i), which requires suppression where “the communication was unlawfully intercepted.” As the court in Abramson noted: In Donovan, the Supreme Court repeated its earlier holding that suppression is required only for “a ‘failure to satisfy any of those statutory requirements that directly and substantially implement the Congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” 97 S.Ct. at 671, quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820 [1832], 40 L.Ed.2d 341 (1974). It repeated also its earlier conclusion that a statutory violation renders an interception unlawful for purposes of § 2518(10)(aXi) only if the requirement involved plays a “substantive role” in the regulatory system, 97" }, { "docid": "23255453", "title": "", "text": "94 S.Ct. 1849, 40 L.Ed.2d 380] (1974). Those cases hold that “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” Id. at 574-575 [, 94 S.Ct. 1855-1856], To the contrary, suppression is' required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, supra, [416 U.S.] at 527 [, 94 S.Ct. at 1832]. United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 670-671, 50 L.Ed.2d 652 (1977). See United States v. Civella, 533 F.2d 1395, 1400-01 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). (3) Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof. 18 U.S.C. § 2518(l)(a-e) specifies the information required in an application for an order authorizing the interception of telephone conversations. Section 2518(l)(b)(i) requires “details as to the particular offense that has been, is being, or is about to be committed.” (emphasis added) As the facts disclose, section 1955 violations were not specified in the application and the judicial authorization for the intercept did not mention section 1955. This, however, as appellant recognizes, is not a per se ground for suppression. Nor does any constitutional infirmity arise from the fact that the 27 July tap yielded much greater evidence of gambling than of narcotics activity. Officers attending a properly authorized, limited, and supervised wiretap have no obligation to close their ears to unexpected incriminating information on matters unrelated to their immediate investigation. They have a legal right to their position" }, { "docid": "23255452", "title": "", "text": "same day. Telephone conversations were intercepted and recorded during the period December 17 to December 22, 1977, some of which showed violations of 18 U.S.C. § 1955. On July 31, 1979, almost nineteen months after the authorization issued, application was made under 18 U.S.C. § 2517(5) to use conversations showing violations of 18 U.S.C. § 1955 pursuant to 18 U.S.C. § 2517(3). Authorization for such use was granted by the district court on the same day. This evidence was then disclosed to a grand jury. On April 17, 1980, the grand jury indicted defendant for violating 18 U.S.C. §§ 1955 and 1084 as well as §§ 371 and 2. Brian was convicted on stipulated facts solely for violating 18 U.S.C. § 1955. Our resolution of the issue must be made in light of the Supreme Court’s holding on the basic requirements for suppression. Resolution of that question [suppression] must begin with United States v. Giordano, 416 U.S. 505 [, 94 S.Ct. 1820, 40 L.Ed.2d 341] (1974), and United States v. Chavez, 416 U.S. 562 [, 94 S.Ct. 1849, 40 L.Ed.2d 380] (1974). Those cases hold that “[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” Id. at 574-575 [, 94 S.Ct. 1855-1856], To the contrary, suppression is' required only for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, supra, [416 U.S.] at 527 [, 94 S.Ct. at 1832]. United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 670-671, 50 L.Ed.2d 652 (1977). See United States v. Civella, 533 F.2d 1395, 1400-01 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). (3) Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may" }, { "docid": "19457266", "title": "", "text": "to believe that particular communications concerning those offenses will be obtained through the requested interception, see id . § 2518(1)(b); id . §§ 2516(1)(e) and (n). As to the necessity for wiretapping, the application must state whether other investigative procedures have been tried and failed, or reasonably appear likely to fail if tried, or appear to be too dangerous. See id . § 2518(1)(c). In addition, the application must provide a full statement as to the applicant's knowledge of \"all previous applications\" for judicial authorization to intercept such communications \"involving any of the same persons ... specified in the application, and the action taken by the judge on each such application.\" Id . § 2518(1)(e). Title III contains an exclusionary rule, specifying that a defendant may make a motion to suppress the contents of any [intercepted] wire or oral communication ... , or evidence derived therefrom, on the grounds that (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a). As there is no suggestion in the present case that the January 9 wiretap authorization was insufficient on its face or that the ensuing wiretaps were not made in conformity with that authorization, the only possible basis for suppression under § 2518(10) here would be that the conversations were intercepted \"unlawfully,\" within the meaning of subsection (10)(a)(i). However, \"[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful .' \" [United States v. Chavez ], 416 U.S. [562,] 574-575, 94 S.Ct. 1849, 40 L.Ed.2d 380 ... [ (1974) ]. To the contrary, suppression is required only for a \"failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.\" United States v. Giordano , ... 416 U.S. [505,] 527," }, { "docid": "19457267", "title": "", "text": "the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a). As there is no suggestion in the present case that the January 9 wiretap authorization was insufficient on its face or that the ensuing wiretaps were not made in conformity with that authorization, the only possible basis for suppression under § 2518(10) here would be that the conversations were intercepted \"unlawfully,\" within the meaning of subsection (10)(a)(i). However, \"[not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful .' \" [United States v. Chavez ], 416 U.S. [562,] 574-575, 94 S.Ct. 1849, 40 L.Ed.2d 380 ... [ (1974) ]. To the contrary, suppression is required only for a \"failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.\" United States v. Giordano , ... 416 U.S. [505,] 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 [ (1974) ].... United States v. Donovan , 429 U.S. 413, 433-34, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (emphasis ours). In Donovan , the Court dealt with, inter alia , a Title III provision requiring the government to include in its wiretap applications \"the identity of the person, if known, committing the offense and whose communications are to be intercepted,\" 18 U.S.C. § 2518(1)(b)(iv). See Donovan , 429 U.S. at 416, 97 S.Ct. 658. The Court ruled that that provision was not satisfied by the government's identification of only the proposed interception's \"principal\" targets, omitting other known targets; rather, the Donovan Court concluded that Congress intended that the \"wiretap application must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual's conversations over the target telephone.\" Id . at 428, 97 S.Ct. 658. Nonetheless, while stating that that identification provision is \"undoubtedly important,\" id . at 434, 97 S.Ct. 658," }, { "docid": "19653578", "title": "", "text": "States v. Staffeldt, 451 F.3d 578, 580 (9th Cir.2006) (quoting United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974)). Title III provides for the suppression of all or part of the contents of intercepted wire or oral communications “if the disclo sure of that information would be in violation of this chapter.” 18 U.S.C. § 2515. “Any aggrieved person in any trial, hearing, or proceeding in or before any court” may move to suppress intercepted communications on three grounds: “(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was interpreted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a)(i-iii). “The words ‘unlawfully intercepted’ [contained in paragraph (i)] are themselves not limited to constitutional violations,” but may include statutory infringements. Giordano, 416 U.S. at 527, 94 S.Ct. 1820. However, the Supreme Court “did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.’ ” United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). “To the contrary, suppression is required [under paragraph (i) ] only for a ‘failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” United States v. Donovan, 429 U.S. 413, 433-34, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (quoting Giordano, 416 U.S. at 527, 94 S.Ct. 1820). While paragraphs (ii) and (iii) of § 2518(10)(a) “must be deemed to provide suppression for failure to observe some of the statutory requirements that would not render interceptions unlawful under paragraph (i),” Giordano, 416 U.S. at 527, 94 S.Ct. 1820, “every circuit to consider the question has held that § 2518(10)(a)(ii) does not require suppression if the facial insufficiency of the wiretap order is no more than a technical" }, { "docid": "812117", "title": "", "text": "of information that this paragraph seeks, and not demonstrable exercise of authority. The latter was accomplished by the Attorney General's authorization ____ The authorizing officer is not the primary source of knowledge in this area. Whatever enlightenment he could give the court would be second-hand. We agree. The Assistant Attorney General’s role in the application process is to provide the mature judgment of a politically responsible official that electronic surveillance is justified in a particular situation. See United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. In performing that role he must be able to rely on the information contained in the applications submitted to him. Section 2518(1) prescribes various types of information that must be included in each application. Nothing in the statute or the case law requires the Assistant Attorney General to verify this information. In the instant case Assistant Attorney General Jensen properly relied on Crossen’s representation regarding previous applications. For the foregoing reasons, there was no violation of § 2518(l)(e). III. Having decided that there was no violation of § 2518(l)(e), we ordinarily would not reach the government’s fallback position, that suppression is not warranted even if there were a violation. However, because the § 2518(l)(e) issue involves a question of law on which the Court of Appeals for this Circuit has yet to speak, we shall address the suppression issue as well. A. Not every failure to comply fully with the requirements of Title III renders the interception of wire or oral communications “unlawful” for purposes of Section 2518(10)(a)(i). United States v. Chavez, 1974, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380. “To the contrary, suppression is required only for a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341; United States v. Donovan, 1977, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652. Courts have indicated that" } ]

[ { "docid": "11219167", "title": "", "text": "finding was that the Board was without author ity to renew the contract due to Hunter’s failure to recommend Mrs. Henry, and thus was not properly a party to the suit. Further the court found that the reasons to which Hunter testified constituted good cause and that he exercised sound discretion in not recommending Mrs. Henry for re-employment. The court refused to rule on the constitutionality of the statutory requirement that teachers list their organizational activities, stating that: “Inasmuch as plaintiff in her present status as a non-teacher is not affected by this requirement, this issue is now moot”. The district judge filed a full opinion, stating the facts and issues and the reasons and grounds for his findings, decision and judgment. We agree with his decision and judgment and adopt his opinion as our own, and, because we do, it will be unnecessary for us to repeat or discuss further his findings and conclusions. It will be sufficient to say that we approve and adopt his opinion and the findings and conclusions stated in it and order the judgment affirmed. . See Lott v. State ex rel. Kelly, 239 Miss. 97, 121 So.2d 402. . Henry v. Coahoma County Board of Education et al,, 246 F.Supp. 517. JOHN R. BROWN, Circuit Judge (concurring): In joining in the affirmance, I would emphasize two things about the Court’s decision. First, though the Superintendent may have broad discretion in recommending or refusing to recommend a teacher for employment by the Board, the Court recognizes that this discretion does not prevent judicial inquiry into the constitutional propriety of his motives in refusing to recommend Plaintiff. See Hornsby v. Allen, 5 Cir., 1964, 326 F.2d 605, rehearing denied, 330 F.2d 55. Discretion gives much power, but this power may never be used to interfere with, or discourage, the exercise of federally guaranteed civil rights including the right to persuade or encourage others in the exercise of their civil rights. United States v. Bruce, 5 Cir., 1965, 353 F.2d 474 [Nov. 16, 1965] ; see United States v. Board of Educ. of Greene County, Miss.," } ]

[ { "docid": "860821", "title": "", "text": "MEMORANDUM OPINION KEADY, Chief Judge. In this case, plaintiffs, black patrons of the Okolona Municipal Separate School District (Schoo.1 District), who in 1969 instituted the original desegregation suit involving the Okolona public schools, presently seek reinstatement and back pay for Lagrone Pack, a black teacher formerly employed at Okolona High School, and other equitable relief. Defendants áre the superintendent and trustees of the School District, who interpose no objection to the issues being raised in the present proceeding, which was begun in 1973 as a motion in the original school case rather than being filed as an independent action. Plaintiffs assert that Pack was relieved of employment at the end of the 1972-73 school year in violation of Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5 Cir. 1970). He alleges that he was dismissed impermissibly, by the use of an evaluation process adopted by the school officials which lacked objective standards to validly measure his ability as a teacher. Defendants deny Singleton’s applicability to the instant case; they aver that Park was not rehired because of gross deficiencies and shortcomings as a, classroom teacher and that the failure to recommend him for continued employment was wholly unrelated to racial considerations. The court has afforded to the parties a full evidentiary hearing, receiving not only the transcript of evidence offered before the school board but also testimony of lay witnesses and educational experts offered by both sides. Briefs by counsel having been submitted, the court proceeds to a determination of the merits, incorporating herein findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P. Many basic facts are stipulated or are not seriously dis puted; certain conflicts in testimony will be resolved by the findings made herein. Lagrone Pack, a lifelong resident of Okolona, holds a Bachelor’s degree from Stillman College, a Master’s from Mississippi State University in the field of political science, and also AA State certification as a high school classroom teacher. He was first employed by the Okolona schools in 1966 at the Fannie Carter (formerly black) School, teaching 9th and 12th" }, { "docid": "17386496", "title": "", "text": "similar to those in Jackson v. United States, 428 F.2d 844, 192 Ct.Cl. 765 (1970), and Swaaley v. United States, 376 F.2d 857, 180 Ct.Cl. 1 (1967) , which were distinguished in Con nolly, 716 F.2d at 887. In dismissing the constitutional count, the Claims Court did not consider whether the personnel manual provisions for back pay upon reinstatement were sufficient to support Hamlet’s monetary claim. Rather, its holding was predicated on the principle that First and Fifth Amendment violations alone do not mandate the payment of money. See Testan, 424 U.S. at 400, 96 S.Ct. at 954. C. The Claims Court also prematurely dismissed Hamlet’s claim for breach of her employment contract and thereby denied her the opportunity to present evidence to establish that basis for recovery. The Claims Court agreed with the government’s argument that “a federal employee has no right against the United States under an implied contract theory” and stated that the “Federal employment relationship is governed by statute and regulations”. Hamlet, 14 Cl.Ct. at 67. In United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), the Supreme Court noted that the Federal government in that case could employ persons by contract and held that plaintiff’s claim for breach of contract was sufficient, under the provisions of the Tucker Act, to withstand a motion to dismiss for lack of jurisdiction. See also Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 739 n. 11, 102 S.Ct. 2118, 2125 n. 11, 72 L.Ed.2d 520 (1982) (distinguishing cases not involving appointment “where contracts were inferred from regulations promising payment.”). We cannot say that there is no set of facts Hamlet could prove which would entitle her to relief based on her allegations that an implied-in-fact contract had been created by the personnel manual provisions covering her employment and that this contract was breached as a result of her removal. D. Finally, the Claims Court held that Hamlet was not an “employee” duly appointed under the provisions of 5 U.S.C. § 2105(a) (1982) and was therefore not entitled to compensation for an" }, { "docid": "22356152", "title": "", "text": "and Texas A&M University had enacted policies that effectively prohibited state employees from serving as expert witnesses against the state, ostensibly because of inherent conflicts of interest. See Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir.1998) (describing the policies). But the Police Officials could hardly have reasonably relied on these state policies as support for their own stand against purported conflicts of interest: The state policies had been challenged as violative of free speech, and a federal judge had preliminarily enjoined their enforcement on August 7, 1997, over a year before the boycott. This court affirmed that decision in an opinion issued July 23, 1998. It would therefore have been unreasonable to rely on these state policies for guidance on the meaning of the First Amendment. In any event, we had spoken to such issues long before the controversy over the policies at issue in Hoover. For example, we held in Rainey v. Jackson State College that a teacher stated a claim under the First Amendment when a state college denied him employment in retaliation for his expert testimony for the defendant in a criminal obscenity case. See 435 F.2d at 1034 (Rainey I). In a later appeal of the same case, we noted that a college trustee had admitted that the plaintiff was denied the teaching position because of his testimony and the publicity surrounding the same; we observed that “[tjhese facts make out what appear to us to be a clear case of impermissibly freighting plaintiffs contract with a deprivation of the First Amendment right to free speech,” and we ultimately held that the plaintiff was entitled to a judgment as a matter of law. Rainey v. Jackson State Coll., 481 F.2d 347, 350 (5th Cir.1973) (Rainey II). The Rainey decisions are themselves part of a long series of First Amendment cases in which we have condemned retaliation against court testimony, including retaliation against employees who gave testimony adverse to their employers’ interests. See Johnston, 869 F.2d at 1568 (county employee fired for testifying on co-worker’s behalf in an administrative hearing); Reeves, 828 F.2d at 1097-99 (school" }, { "docid": "4120950", "title": "", "text": "S.Ct. 1780, 29 L.Ed.2d 284 (1971) ; Tinker v. Des Moines School District, 393 U.S. 503, 513-514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). . An important distinction between Pickering and the instant case is that teacher Pickering engaged in criticism of the school board and that Dr. Hostrop merely made a suggestion for a change in curriculum. It is unclear from Pickering whether the Supreme Court thought that criticism of a superior by an employee in a close working relationship with him would be analogous to the speaking of “fighting words” so that the state could discharge the employee merely because he spoke the words of criticism, or whether the state would have to prove that the working relationship between the two had deteriorated because of the criticism so that the two could no longer work effectively together. In both Lefecourt v. Legal Aid Society, 312 F.Supp. 1105 (S.D.N.Y.1970), aff’d, 445 F.2d 1150 (2d Cir. 1971), and Watts v. Seward School Board, 454 P.2d 732 (Alas.1969), cert. denied, 397 U.S. 921, 90 S.Ct. 899, 25 L.Ed.2d 101 (1970), employees were discharged for a series of confrontations and incidents which cumulatively destroyed the efficiency of the governmental units for which the employees worked. Furthermore, in botli cases the action of the government employer in discharging the employees was upheld only after a trial court heard evidence relating to the kind of criticism involved and its actual effects. . The district court did not decide whether the memorandum was distributed publicly or privately, but thought this issue was important because of its view that the first amendment does not protect private communications. This point was not argued on appeal. Past decisions have extended- the first amendment to protect private statements made by public employees, Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Swaaley v. United States, 376 F.2d 857, 863, 180 Ct.Cl. 1 (1967), and statements made by public employees in carrying- out their assigned duties. Downs v. Conway School District, 328 F.Supp. 338 (E.D.Ark.1971);" }, { "docid": "23710496", "title": "", "text": "to teach at Jackson State College for the academic year 1970-71 had been terminated by the defendants because of his exercise of his First Amendment right of free speech. Specifically, plaintiff alleged that he was dismissed because he had testified as an expert witness on behalf of persons under criminal charges of obscenity arising from exhibition of the motion picture “The Fox.” September 16, 1970, after a hearing, the district court dismissed Rainey’s complaint for lack of subject matter jurisdiction. On September 18 plaintiff applied to this court for an injunction pending appeal, to prevent his dismissal pending a hearing before this court. The motion was granted September 21. The defendants did not reinstate Rainey to his teaching position but rather insisted that the order of this court only required that his salary be paid (also the college gave him the opportunity to do research). Plaintiff had to come back to this court for further relief, and on September 28, we entered another order requiring that he be reinstated to the type of teaching duties and responsibilities contemplated in his contract with Jackson State. Rainey’s appeal from the district court’s dismissal order was heard by this court on November 18, 1970. Our opinion was handed down December 22, 1970. We held that the district court had erred in dismissing the suit and remanded the case for further proceedings. We left our injunction in effect until plaintiff could ask the district court for injunctive relief pending the trial in that court on the merits. Rainey I, 435 F.2d 103Í (CA5 1970). After remand plaintiff moved in the district court for injunctive relief, but the record does not show that any action was taken on the motion, with the result that Rainey continued to teach throughout the 1970-71 year (ending May 31, 1971) under the authority of the injunction which this court had issued. After the end of that academic year, Rainey amended his complaint to allege that he had been deprived of a non-contractual right to teach during the summer 1971 session and the 1971-72 academic year. The suit was tried" }, { "docid": "23710495", "title": "", "text": "GODBOLD, Circuit Judge: This appeal is an outgrowth of our earlier decisions in Rainey v. Jackson State College, 435 F.2d 1031 (CA5 1970) (“Rainey I”) and Rainey v. Jackson State College, 481 F.2d 347 (CA5 1973) (“Rainey II”). In Rainey II we held that plaintiff was entitled to an award of attorneys’ fees and remanded the case to the district court for it to make an award. After an evidentiary hearing the district court awarded fees of $1,750. Plaintiff appeals on the ground that the award is inadequate and that the district court used incorrect standards in setting it. Defendants cross-appeal, contending that no attorneys’ fees should be awarded. We agree with plaintiff, vacate the judgment of the district court, and remand the casé with directions to enter a judgment awarding plaintiff attorneys’ fees of $11,182.50. It is necessary to set out the history of this prolonged litigation in order to understand why the district court award was inadequate. Plaintiff-appellant Rainey filed this suit in 1970, under 42 U.S.C. § 1983, alleging that his contract to teach at Jackson State College for the academic year 1970-71 had been terminated by the defendants because of his exercise of his First Amendment right of free speech. Specifically, plaintiff alleged that he was dismissed because he had testified as an expert witness on behalf of persons under criminal charges of obscenity arising from exhibition of the motion picture “The Fox.” September 16, 1970, after a hearing, the district court dismissed Rainey’s complaint for lack of subject matter jurisdiction. On September 18 plaintiff applied to this court for an injunction pending appeal, to prevent his dismissal pending a hearing before this court. The motion was granted September 21. The defendants did not reinstate Rainey to his teaching position but rather insisted that the order of this court only required that his salary be paid (also the college gave him the opportunity to do research). Plaintiff had to come back to this court for further relief, and on September 28, we entered another order requiring that he be reinstated to the type of teaching duties" }, { "docid": "23559538", "title": "", "text": "presented is interference with the right to play football. See Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970). Instead, the refusal to allow John to play football infringes on statutorily-created federal rights and thus the claim asserts a federal cause of action. See Walsh v. Louisiana High School Athletic Association, 616 F.2d 152, 156 (5th Cir. 1980). . Those factors are: 1. Irreparable harm to the plaintiff from failure to issue the injunction. 2. The relative lack of harm to the defendant from issuance of the injunction. 3. The public interest. 4. Probability that the plaintiff will ultimately succeed on the merits. Camenisch v. University of Texas, 616 F.2d 127, 130 (5th Cir. 1980). . Appellee also urges this contention, apparently fearful that a determination of mootness by this court would preclude any award of attorneys’ fees. Our discussion of attorneys’ fees rejects both arguments. . In Rainey v. Jackson State College, 481 F.2d 347 (5th Cir. 1973), the court proceeded to the merits of a moot case in order to resolve a claim for attorneys’ fees. Rainey is inapposite. In that case, the district court reached a final determination on the merits after a preliminary injunction had mooted the case. The case was thus already moot when it was tried in the district court. The Attorneys’ Fees Act, 42 U.S.C. § 1988, had not been enacted when Rainey was decided and the standard for awarding attorneys’ fees was whether defendant. had been “unreasonable and obdurately obstinate.” Id. at 350. This standard required examining the merits. As discussed below, § 1988 requires only that plaintiff be a “prevailing party.”" }, { "docid": "23710507", "title": "", "text": "the case, (4) the novelty and difficulty of the questions presented, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, (12) awards in similar cases. In this case, the first and foremost element is counsel’s success, achieved over stringent opposition at district court and appellate levels. In Rainey I he obtained for plaintiff the right to be reinstated to the faculty of Jackson State for the 1970-71 year and to engage in teaching rather than research. In Rainey II he secured the findings, entered by this court and discussed above, concerning the reasons for plaintiff’s termination. The effect of these findings was mooted with respect to substantive relief of the right to teach, and to be paid, in 1970-71. But they have viable, continuing and permanent life as the recorded vindication of the correctness of Rainey’s position. They operate as a declaratory judgment that he was not terminated at Jackson State for any reason other than his previous exercise of his First Amendment right to free speech. Obviously this is a significant matter for a professional teacher who, in the pursuit of his career, must seek employment at other institutions, And, beyond the bare parameters of effect on employment, the findings vindicate Rainey’s position in the eyes of his professional colleagues and of the world at large. Plainly this was not a “desirable” case. The State Board of Trustees of Institutions of Higher Learning are citizens of stature. One of the most active trustees is a well known Mississippi attorney, a fellow member of the Bar to plaintiff’s attorney. The real reason for Rainey’s difficulties — testifying for the defense in a criminal case charging obscenity — is such that Rainey’s counsel incurred the risk of drawing public disfavor upon himself. On the matter of time spent, the district court referred to the number of" }, { "docid": "13829004", "title": "", "text": "damages. See supra note 3; Walton v. United States, 213 Ct.Cl. 755, 757 (1977). That amendment merely forbids Congress from enacting certain types of laws; it does not provide persons aggrieved by governmental action with an action for damages in the absence of some other jurisdictional basis. In construing the contours of Tucker Act jurisdiction, it would be, of course, impertinent for us to consider whether appellee may make such a first amendment claim within the non-monetary jurisdiction of a district court, or in a district court suit against the Postal Service. Featheringill, supra, 217 Ct.Cl. at 32; Clark, supra, slip op. at 8. In his effort to expand Claims Court jurisdiction to encompass claims founded solely upon the first amendment, appellee cites Jackson v. United States, 192 Ct.Cl. 765, 428 F.2d 844 (1970) and Swaaley v. United States, 180 Ct.Cl. 1, 376 F.2d 857 (1967). Those cases are quite distinguishable from the one before us. Both Jackson and Swaaley primarily involved claims for back pay, and the plaintiffs in those cases sought such compensation in accordance with federal pay statutes. Jackson served as a probationary employee of the Department of Agriculture with a GS-9 rating; Swaaley was a WB-11 naval mechanic. Both of those plaintiffs could rely upon pay statutes which provided them with rates of pay, and they had causes of action for back pay under the Tucker Act if such compensation was wrongly withheld. See, e.g., 5 U.S.C. § 5332(a) (1970) (setting pay schedule for GS employees). Those plaintiffs sought back pay for their allegedly improper removal from positions which they held, and not money damages per se. Accord Cole v. United States, 689 F.2d 1040 (Ct.C1.1982). In this light, the Tucker Act jurisdiction of the Court of Claims followed from the pay legislation pertaining to those employees and the latters’ invocation of the first amendment formed part of their claims that they had been illegally deprived of their pay. Cf. Ah Sam v. United States, 682 F.2d 925, 934-35 (Ct.C1.1982), cert. denied, - U.S. -, 103 S.Ct. 786, 74 L.Ed.2d 993 (1983). Connolly, in contrast, cannot" }, { "docid": "4085873", "title": "", "text": "(1976). The Court of Claims’ treatment of the first amendment as a basis for jurisdiction has been less consistent. On the one hand, in Featheringill v. United States, 217 Ct.Cl. 24, 33 (1978), the court held that “the First Amendment ... no more mandates the payment of money than does the due process clause and, thus, may not serve as a jurisdictional basis for plaintiff’s law suit.” Accord Clark, No. 658-80C, supra. On the other hand, in Jackson v. United States, 192 Ct.Cl. 765, 768, 428 F.2d 844 (1970), the court held that a probationary employee’s claim that he was discharged in retaliation for the exercise of first amendment rights was “‘founded upon the constitution’ of which we have jurisdiction by virtue of 29 U.S.C. 1491(1) .... ” Accord Bowman v. United States, No. 577-79C, order at 2 (Ct.Cl. Mar. 6, 1981). Featheringill, decided some eight years after Jackson, recognized the tension with that earlier decision and sought to distinguish it. The plaintiff in Featheringill had received a temporary appointment which expired, by its own terms, after one year. Plaintiff argued that the government’s failure to reappoint him was motivated by retaliation for the exercise of his rights under the first amendment. 217 Ct.Cl. at 26-27. After rejecting plaintiff’s argument that jurisdiction was based upon the Back Pay Act, 5 U.S.C. § 5596, 217 Ct.Cl. at 27-32, the court turned to the first amendment. It assumed, for purposes of the decision, that plaintiff had stated a valid claim of retaliation under the first amendment, a claim which could form the basis for relief if jurisdiction were established. The court nevertheless concluded that “even where a substantive right may exist, such a right does not of necessity mean that money damages are available [in the Court of Claims] to redress its possible violation.” Id. at 32. As noted earlier, the court held that the amendment could not form a basis for jurisdiction under the Tucker Act and therefore dismissed the action. The Featheringill court distinguished Jackson in a single paragraph, noting that Jackson had involved a dismissal while the case before" }, { "docid": "23710500", "title": "", "text": "the second appeal for other reasons. It was the means through which he could continue to try to establish the validity of his original position with respect to the 1970-71 year— i. e., that his contract had been terminated because of his exercise of First Amendment rights, and to establish a right to attorneys’ fees. We concluded that for work done on the second appeal fees should be awarded on the basis of one-half of a full fee. On remand from Rainey II, the plaintiff filed a written schedule by his lead attorney purporting to show the time counsel had spent on the case, broken down by hours and days. It showed 251 hours of work from the filing of suit through the first appeal and 165 hours devoted to the second appeal. Plaintiff also presented testimony by experienced and highly regarded attor neys from Jackson that the minimum fee for an attorney’s services performed in the Southern District of Mississippi is $35 per hour. This testimony was not controverted. We discuss below the various factors which must be weighed in making an award of attorneys’ fees, as set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974). At this point, it is sufficient to say that several of these factors are affected by the merits of Rainey’s claim that he had been terminated because of his exercise of rights of free speech guaranteed by the First Amendment. Our opinion in Rainey II considered and made findings on the merits and entered a judgment sustaining Rainey’s claim that his termination of employment was unconstitutional. 481 F.2d at 349-50: “[The] facts make out a clear case of impermissibly freighting plaintiff’s contract with a deprivation of the First Amendment right to free speech.” 481 F.2d at 350. Also, our opinion spelled out these underlying facts. Plaintiff had a contract to teach at Jackson State for 1970-71. The contract was “withdrawn” or broken for the sole reason that it was discovered that the previous year, while he was teaching in another institution, Rainey had testified as an expert witness" }, { "docid": "23710501", "title": "", "text": "factors which must be weighed in making an award of attorneys’ fees, as set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974). At this point, it is sufficient to say that several of these factors are affected by the merits of Rainey’s claim that he had been terminated because of his exercise of rights of free speech guaranteed by the First Amendment. Our opinion in Rainey II considered and made findings on the merits and entered a judgment sustaining Rainey’s claim that his termination of employment was unconstitutional. 481 F.2d at 349-50: “[The] facts make out a clear case of impermissibly freighting plaintiff’s contract with a deprivation of the First Amendment right to free speech.” 481 F.2d at 350. Also, our opinion spelled out these underlying facts. Plaintiff had a contract to teach at Jackson State for 1970-71. The contract was “withdrawn” or broken for the sole reason that it was discovered that the previous year, while he was teaching in another institution, Rainey had testified as an expert witness for the defense in an obscenity trial. The defense was successful, and Rainey received widespread publicity. A member of the Board of Trustees heard of his having testified and brought this to the attention of other trustees, which in turn caused the president of Jackson State to “withdraw” Rainey’s contract. The trustees and the president then engaged in a series of explanations and reasons for their actions, some of which were pretexts, and all of which collapsed when a trustee testified on deposition and at trial that the testimony at the obscenity trial and the resulting publicity was the reason for “withdrawing” Rainey’s contract. We held that “[T]he lack of a defense on the part of defendants [was] apparent.” Id., Moreover, we held that defendants were guilty of “unreasonable and obdurate obstinacy.” With this history in mind we turn to decision. The defendants have cross-appealed on the ground that the Eleventh Amendment to the United States Constitution barred any award of attorneys’ fees against the state. This contention has been overtaken by two events. The" }, { "docid": "22356153", "title": "", "text": "retaliation for his expert testimony for the defendant in a criminal obscenity case. See 435 F.2d at 1034 (Rainey I). In a later appeal of the same case, we noted that a college trustee had admitted that the plaintiff was denied the teaching position because of his testimony and the publicity surrounding the same; we observed that “[tjhese facts make out what appear to us to be a clear case of impermissibly freighting plaintiffs contract with a deprivation of the First Amendment right to free speech,” and we ultimately held that the plaintiff was entitled to a judgment as a matter of law. Rainey v. Jackson State Coll., 481 F.2d 347, 350 (5th Cir.1973) (Rainey II). The Rainey decisions are themselves part of a long series of First Amendment cases in which we have condemned retaliation against court testimony, including retaliation against employees who gave testimony adverse to their employers’ interests. See Johnston, 869 F.2d at 1568 (county employee fired for testifying on co-worker’s behalf in an administrative hearing); Reeves, 828 F.2d at 1097-99 (school employee demoted for her civil testimony in favor of her co-employee against their employer). Judge Jones’s dissent discusses in some detail three cases from other circuits that, in her estimation, show that the defendants did not violate the First Amendment and should in any event be entitled to qualified immunity. Only one of these, the Third Circuit’s decision in Green, was on the books when the Police Officials began their activities. The plaintiff in Green, a police officer on a drug task force, agreed to testify as a character witness at the bail hearing of the son of a longtime friend. 105 F.3d at 884. The plaintiff left the hearing without testifying after he learned that the son was associated with organized crime. Id. The police agency demoted the officer anyway, citing their interest in avoiding the appearance of an association with organized crime. Id. at 884-85. Surely it would cast a police agency into disrepute if its vice officers were thought to consort with mob figures, but the Police Officials in this appeal cannot" }, { "docid": "17386495", "title": "", "text": "(1983). B. The Claims Court’s dismissal of Hamlet’s claim for reinstatement and back pay based on her constitutional count was incorrect as a matter of law. In United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983) (in banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984), we held that “the first amendment, standing alone, cannot be ... interpreted to command the payment of money” (emphasis added), and therefore cannot support the Claims Court’s jurisdiction under the Tucker Act. The same holds true for the due process clause of the fifth amendment. Id. See also Inupiat Community of the Arctic Slope v. United States, 680 F.2d 122, 132, 230 Ct.Cl. 647 (1982); Myers v. United States, 231 Ct.Cl. 965, 966 (1982). Unlike the plaintiff in Connolly, however, Hamlet’s constitutional claim is not based solely on First and Fifth Amendment violations. Rather, she relies additionally upon the back pay, compensation and reinstatement rights contained in the ASCS Personnel Policy Manual which governed her employment with the ASCS. In this regard, Hamlet’s claim is similar to those in Jackson v. United States, 428 F.2d 844, 192 Ct.Cl. 765 (1970), and Swaaley v. United States, 376 F.2d 857, 180 Ct.Cl. 1 (1967) , which were distinguished in Con nolly, 716 F.2d at 887. In dismissing the constitutional count, the Claims Court did not consider whether the personnel manual provisions for back pay upon reinstatement were sufficient to support Hamlet’s monetary claim. Rather, its holding was predicated on the principle that First and Fifth Amendment violations alone do not mandate the payment of money. See Testan, 424 U.S. at 400, 96 S.Ct. at 954. C. The Claims Court also prematurely dismissed Hamlet’s claim for breach of her employment contract and thereby denied her the opportunity to present evidence to establish that basis for recovery. The Claims Court agreed with the government’s argument that “a federal employee has no right against the United States under an implied contract theory” and stated that the “Federal employment relationship is governed by statute and regulations”. Hamlet, 14 Cl.Ct. at 67. In United States v. Hopkins," }, { "docid": "6906984", "title": "", "text": "impinging on his constitutional rights, he must be afforded a hearing. Also, even in the area of non-constitutional reasons, the board’s decision must not be wholly unsupported by evidence else it would be so arbitrary as to be a constitutional violation. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560, 563 (1927). The board followed the recommendations of the superintendent, without whose recommendation no Mississippi school board may hire a teacher. Lott v. State ex rel. Kelly, 239 Miss. 97, 121 So.2d 402 (1960). This does not make the termination of Lucas unreviewable. The superintendent, and the superintendent-board combination, are as bound to follow constitutional requirements as the board would be acting alone. See Henry v. Coahoma County Bd. of Educ., 353 F.2d 648, 650 (5th Cir.1965) (concurring opinion of Judge Brown). The District Court hearing does not, in this case, supplant the necessity for employment by the board of appropriate procedures. The case went to trial before the District Court on Lucas’ claims that he had been discharged for political and civil rights activities. The claim based on the PTA meeting speech was added by amendment after the District Court hearing and on the basis of the evidence developed at the hearing. All this simply underscores that not only necessity but practicability, and the common sense fairness that rules in day to day dealings, require that if a teacher with a protectible interest opposes his termination he be told the reason and what supports the reason and given an opportunity to present his side if he desires. The localized, less formalized, less adversary atmosphere of the board is the best forum to adjudicate and ameliorate problems of teacher rehiring to the mutual acceptability, if not the full satisfaction, of board and teacher. Abdication to the courts may be the short way across, but it may be the long way around, as in this case. The rights of the individual teacher, of teachers" }, { "docid": "13829003", "title": "", "text": "falls within the terms of the Tucker Act, the United States has presumptively consented to suit,” see United States v. Mitchell,U.S. -, -, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983), the basic issue is whether the first amendment “can fairly be interpreted as mandating compensation for the damages sustained.” See id.; United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976); Featheringill v. United States, 217 Ct.Cl. 24, 32 (1978); Eastport Steamship Co. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). We agree with the Court of Claims that the first amendment, standing alone, cannot be so interpreted to command the payment of money. Featheringill, supra, 217 Ct.Cl. at 32-33; see Clark v. United States, No. 658-80C, slip op. at 7-8 (Ct.Cl. Nov. 6, 1981); Mullins v. United States, No. 240-81C, slip op. at 3 (Ct.Cl. Oct. 30,1981). Like the due process clause of the fifth amendment, the literal terms of the first amendment neither explicitly nor implicitly obligate the federal government to pay damages. See supra note 3; Walton v. United States, 213 Ct.Cl. 755, 757 (1977). That amendment merely forbids Congress from enacting certain types of laws; it does not provide persons aggrieved by governmental action with an action for damages in the absence of some other jurisdictional basis. In construing the contours of Tucker Act jurisdiction, it would be, of course, impertinent for us to consider whether appellee may make such a first amendment claim within the non-monetary jurisdiction of a district court, or in a district court suit against the Postal Service. Featheringill, supra, 217 Ct.Cl. at 32; Clark, supra, slip op. at 8. In his effort to expand Claims Court jurisdiction to encompass claims founded solely upon the first amendment, appellee cites Jackson v. United States, 192 Ct.Cl. 765, 428 F.2d 844 (1970) and Swaaley v. United States, 180 Ct.Cl. 1, 376 F.2d 857 (1967). Those cases are quite distinguishable from the one before us. Both Jackson and Swaaley primarily involved claims for back pay, and the plaintiffs in those cases sought such compensation" }, { "docid": "22356236", "title": "", "text": "advantage of their job titles in the courtroom. Not only is the speech in whistleblower cases generically different from appellees’ expert testimony, but the corresponding interests of public employers are different. This court has been unsympathetic to employer retaliation against government whistleblowers, since their unorthodox conduct may furnish the public’s only protection against internal misconduct. A public employer has little, if any, legitimate interest in hiding dirty linen from the taxpaying public. The case before us is not, however, so easily pigeonholed. The police officials are not concealing misdeeds within their departments. Indeed, since the Kerrville plaintiff on whose behalf Kinney and Hall testified left court empty-handed, the police officials’ “retaliation” did not ultimately stifle the exposure of wrongdoing. The majority’s facile analogy with ordinary whistleblower cases is simply wrong. We have here assumed that the police officials’ actions would not satisfy the Pickering/Connick balancing test after careful analysis, but such a legal conclusion does not so ineluctably follow from a few citations to whistleblower cases as to “clearly establish” the guiding law. The majority’s analogy to cases involving educators is also weak. In Rainey, this court concluded that a college teacher’s contracts were unconstitutionally breached because of his testimony as a defense expert witness in a pornography case. Rainey v. Jackson State Coll., 481 F.2d 347, 349 (5th Cir.1973). Holding that the breach violated Rainey’s First Amendment rights, this court did not engage in Pickering balancing. Id. at 349-50. By its nature, Rainey’s testimony could not have conflicted with the interests of his employer. No countervailing employer interests were advanced by the college against Rainey’s right to testify. Legally and factually, Rainey is a poor fit with this case. Closer factually to the instant case is the policy of Texas A&M University (and a state legislative appropriation provision), implemented before the police officials took action directed at Kinney and Hall, that broadly forbade university employees from testifying as expert witnesses for parties adverse to the state’s interests. See Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir.1998). The police officials cite the policy as reflecting clearly established law in" }, { "docid": "23710497", "title": "", "text": "and responsibilities contemplated in his contract with Jackson State. Rainey’s appeal from the district court’s dismissal order was heard by this court on November 18, 1970. Our opinion was handed down December 22, 1970. We held that the district court had erred in dismissing the suit and remanded the case for further proceedings. We left our injunction in effect until plaintiff could ask the district court for injunctive relief pending the trial in that court on the merits. Rainey I, 435 F.2d 103Í (CA5 1970). After remand plaintiff moved in the district court for injunctive relief, but the record does not show that any action was taken on the motion, with the result that Rainey continued to teach throughout the 1970-71 year (ending May 31, 1971) under the authority of the injunction which this court had issued. After the end of that academic year, Rainey amended his complaint to allege that he had been deprived of a non-contractual right to teach during the summer 1971 session and the 1971-72 academic year. The suit was tried on the merits of this amended complaint in January 1972. The jury returned special verdicts in favor of defendants with respect to both the 1970-71 academic year and the succeeding period. Thus, in effect, the jury held that Rainey had not been discharged in 1970 for exercise of his rights of free speech, nor had he been improperly denied employment for the summer of 1971 and the 1971-72 school year. Plaintiff filed a motion in the district court asking that notwithstanding the jury verdict the court enter a judgment in his favor (a “judgment n. o. v.”). Plaintiff had claimed to be entitled to attorneys’ fees, but since the judgment for defendants was left in effect no fees were awarded. In Rainey II, 481 F.2d 347 (CA5 1973), this court held that the district court should have granted Rainey a judgment n. o. v. in his favor on his claim for the academic year 1970-71. We recognized that his claim of a right to teach during that period, and to be paid for such services," }, { "docid": "22356185", "title": "", "text": "plaintiff’s underlying claim had been mooted by the passage of time by the date of the second appeal; we reached the merits of the claim in order to determine whether he was entitled to attorneys’ fees. Rainey II, 481 F.2d at 349. This was nonetheless a holding on the merits of the First Amendment claim, as a later appeal in the same saga recognized: “Our opinion in Rainey II considered and made findings on the merits and entered a judgment sustaining Rainey's claim that his termination of employment was unconstitutional.’’ Rainey v. Jackson State Coll., 551 F.2d 672, 675 (5th Cir.1977) (Rainey III). . The Eighth Circuit decided Tedder in February 1999, after the boycott had already caused Kinney's and Hall's classes to be can-celled and after Hall had already left ETPA. The Tenth Circuit decided Worrell in 2000. Both cases are discussed supra. . Relatedly, we do not understand the Police Officials' assertion, advanced by the dissent, Jones dissent at 394, that Kinney and Hall somehow exploited their association with ETPA. The instructors did not seek out their role in the Kerrville case; the victim's family approached them after failing to find any qualified local experts who would testify against the police. In order to establish their competence to offer expert opinion, surely the instructors’ testimony would have to mention their place of employment. The Police Officials never complained about misuse of the good name of ETPA when an instructor gave expert testimony, with pay, in favor of the police. . Noyola observed that, because of the balancing required in Pickering cases, \"[tjhere will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated ‘clearly established' constitutional rights.” 846 F.2d at 1025. We do not think that this remark can be taken to set forth a rule of law to the effect that qualified immunity is mandated in Pickering cases; indeed, the Noyola opinion itself went on to analyze whether the plaintiff’s alleged right actually was clearly established. See id. at 1025-26. Noyola's statement facially takes the form of a prediction" }, { "docid": "22356237", "title": "", "text": "analogy to cases involving educators is also weak. In Rainey, this court concluded that a college teacher’s contracts were unconstitutionally breached because of his testimony as a defense expert witness in a pornography case. Rainey v. Jackson State Coll., 481 F.2d 347, 349 (5th Cir.1973). Holding that the breach violated Rainey’s First Amendment rights, this court did not engage in Pickering balancing. Id. at 349-50. By its nature, Rainey’s testimony could not have conflicted with the interests of his employer. No countervailing employer interests were advanced by the college against Rainey’s right to testify. Legally and factually, Rainey is a poor fit with this case. Closer factually to the instant case is the policy of Texas A&M University (and a state legislative appropriation provision), implemented before the police officials took action directed at Kinney and Hall, that broadly forbade university employees from testifying as expert witnesses for parties adverse to the state’s interests. See Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir.1998). The police officials cite the policy as reflecting clearly established law in the Fifth Circuit. The majority discounts appellants’ reliance, because the policies were under federal court challenge, and ultimately did not survive. We agree that Hoover’s context is sufficiently different as not to furnish controlling authority in support of the police officials. By the same token, however, the majority ought to concede that Hoover reinforces the principle that in this context-sensitive balancing area of constitutional law, what is clearly established must be closely related factually and legally to a case at hand. Significantly, this Court in Hoover “assumed that there will be occasions when the state’s interests in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant-” 164 F.3d at 226 (emphasis added). Hoover concludes by stating: But our task in this case requires us to apply a Pickering case-by-case analysis, and in doing so we conclude that the expert witness rider and TAMUS policy No. 3105 are impermissibly overbroad. Our opinion does not foreclose consideration of rules and regulations aimed at limiting expert testimony of" } ]

[ { "docid": "22750982", "title": "", "text": "The Third Circuit has held that “§ 287.6 ... is not the exclusive means of authenticating records before an immigration judge” in part, because “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor.” Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir.2004) (internal quotation marks omitted); see also Abank- wah v. INS, 185 F.3d 18, 26 (2d Cir.1999) (“[I]t must be acknowledged that a genuine refugee does not flee her native country armed with affidavits, expert witnesses, and extensive documentation.”). It appears that the BIA agrees. See C-Y-Z, 21 I. & N. Dec. at 918 (discussing INS argument for rejection of applicant’s position because his documents were not authenticated), 920 (granting petition and thus implicitly rejecting absolute authentication requirement). We, too, agree, and find that the IJ erred by rejecting the notarial birth certificate based on Cao’s failure to authenticate it pursuant to “regulation.” The judge also held that Cao’s testimony was implausible and/or insufficient because he did not produce the hospital certificate; however, she did not ask him why he did not offer it. While we likely would not vacate on this basis alone, we note that an IJ has an obligation to ensure that documentation is available before relying on the applicant’s failure to produce it. See Qiu, 329 F.3d at 153. Without some specific evidence concerning practices in China, the IJ’s conclusion that Lin’s midwife could not have obtained a hospital certificate based solely on her word is speculative. See Ramsameachire, 357 F.3d at 178. In a domestic case, it might well be acceptable to infer that hospital personnel who had not witnessed a birth would not issue a birth certificate. However, the plausibility of this inference rests on known practices concerning the issuance of birth certificates in the United States. That basis is lacking here. We have no knowledge about the documentation required in China, and the record does not reflect that the IJ knew anything about documentation practices in China. We have previously cautioned that IJs must “back [] demands for corroborative evidence with a" } ]

[ { "docid": "22541048", "title": "", "text": "Id.; id. The IJ also relied Lin’s failure to call as witnesses his cousin — who was living in New Jersey — or members of his current parish in New York. An applicant’s failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Because Lin’s testimony was not otherwise credible, the IJ properly relied on the lack of corroborative evidence. Moreover, here, the IJ warned Lin before his actual hearing that she (a) would give the letter attesting to his church membership no weight in the absence of a witness, and (b) would give his cousin’s affidavit “no weight whatsoever.” In sum, the IJ’s adverse credibility determination was supported by substantial evidence in light of the record as a whole. The factors that the IJ properly relied upon were central to Lin’s claim of persecution. We note, however, that the IJ also relied on several factors that do not support such a determination. Nevertheless, reviewing the record as a whole, we can confidently predict that the IJ would reach the same decision on remand, even absent the grounds improperly relied upon. See Xiao Ji Chen, 471 F.3d at 338-39. Because the IJ permissibly determined that Lin was not credible and therefore did not meet his burden of proof for asylum, and because Lin’s withholding-of-removal claim also depends on the credibility of his testimony, it necessarily follows that denial of withholding of removal was also correct. Zhou Yun Zhang, 386 F.3d at 71. Moreover, the IJ properly concluded that Lin had “utterly failed to make out a claim under the Convention Against Torture for illegal departure,” because Lin admitted that he had not departed China illegally, and there is no evidence in the record tending to show that Lin would be subject to torture upon his return to China. II. Frivolousness Determinations Having concluded that the IJs’ credibility rulings were supported by substantial evidence," }, { "docid": "23108434", "title": "", "text": "of Communist regimes in the Balkans), and [ii] we will not assume that the agency suffers from such ignorance.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 272 (2d Cir.2007). Clearly, no “indisputable historical event” supports the BIA’s decision, where the IJ, relying on the very same record evidence, reached the opposite conclusion, and explained in detail his reasons for doing so. Since Hoxhallari does not apply, the normal requirements for a valid factual determination remain in force. The agency must provide a reasoned basis for its decision, Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006), and must premise that decision on substantial evidence in the record, Tambadou v. Gonzales, 446 F.3d 298, 303-04 (2d Cir.2006). Neither of these requirements is satisfied by a bald assertion that conditions in Mauritania have “improved dramatically.” Conclusion We have identified flaws that go to the heart of the agency’s decision to deny Niang’s application. We cannot predict with confidence that, in the absence of these errors, the agency would reach the same conclusion, and, as a result, remand is not futile. See Xiao Ji Chen, 471 F.3d at 335; Cao He Lin, 428 F.3d at 395. Accordingly, we GraNt the petition for review, VaCate the decision of the BIA to the extent that it denies Niang’s claims for withholding of removal and CAT relief, and Remand the case for further proceedings consistent with this opinion. Petitioner’s motion for a- stay of removal pending the outcome of this appeal is Dismissed as moot. . In addition to the two identity documents, the IJ admitted to the record the State Department's Country Reports on Mauritania for 2000 and 2002, and other sources on conditions in Mauritania. . Niang does not challenge the agency’s finding that his asylum claim was untimely filed. . Petitioner contends that the IJ failed even to make an adverse credibility finding, but it is tolerably clear that the IJ relied on Niang’s statements about the documents to find his testimony incredible as a whole. . Indeed, the IJ himself accepted that \"[t]he kind of persecution [Niang] suffer[ed], according to his" }, { "docid": "22613261", "title": "", "text": "Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001) (noting that “[t]he procedure specified in 8 C.F.R. § 287.6 provides one, but not the exclusive, method” of authentication (internal quotation marks and citation omitted)). As we have discussed, however, the BIA’s refusal to credit the Notice in this case did not depend on the lack of official authentication consonant with BIA regulations alone. The BIA’s rejection of the Notice’s authenticity was based substantially on legitimate concerns about Zheng’s credibility and contrary evidence in the record. That removes this case from the teaching of Cao He Lin. We do not reach the question of whether the BIA might err if it required strict compliance with 8 C.F.R. § 287.6 for foreign documents submitted in support of motions to reopen. We recognize that it may not be possible for an applicant filing a motion to reopen to obtain from a foreign government valid and proper authentication of a document such as the Notice, which purports to threaten persecution of an individual seeking asylum elsewhere, even if the evidence supporting its authenticity were credible. We decide only that, in this case, the BIA did not abuse its discretion in declining to consider a document — questionable on its face, supported only by a spouse’s affidavit, and not authenticated pursuant to regulation — that attempts to establish the sweeping proposition that subsequent to the date of the petitioner’s entry into the country and application for asylum, country conditions had undergone a material adverse change sufficient to affect his petition for asylum. B. Other Evidence The petitioner’s other evidence, and arguments in support thereof, are also unavailing. The BIA acted within its discretion in determining that many of the documents submitted to it were previously available and that the country reports alone did not demonstrate changed country conditions. Zheng failed to explain why any of the documents, which were dated from September 1999 to February 2004, could not have been submitted earlier. CONCLUSION The BIA did not abuse its discretion in denying the motion to reopen. The petition is denied. Our review having been completed," }, { "docid": "22627886", "title": "", "text": "Qin Wen Zheng v. Gonzales, 500 F.3d at 147 (holding agency may use general adverse credibility finding “in support of its refusal to credit the authenticity” of document submitted by petitioner). At the same time, however, we recognize the possibility that, in circumstances where an IJ is satisfied as to the authenticity of certain documents without regard to a petitioner’s testimony, those documents may then shed favorable light on the credibility of that testimony. In sum, while we have rejected any requirement that corroborative documents strictly comply with the BIA’s authentication regulations, we afford IJs considerable flexibility in determining the authenticity of such documents from the totality of the evidence and in using documents found to be authentic in making an overall assessment of the credibility of a petitioner’s testimony and, ultimately, of her persecution claim. We express no view as to the reliability of the documentary evidence here at issue or the weight that it might bear if found to be authentic. We hold only that, in light of Cao He Lin, we now conclude that the IJ erred in finding that the lack of § 287.6 authentication required her to reject the evidence and to give it no weight at all in determining Li’s credibility. 3. The Decision to Remand Where the adverse credibility determination supporting denial of relief from removal is a product of some agency findings infected by legal error and others that are not, our decision to uphold the agency decision or to remand for further proceedings depends on how “confidently” we can “predict that the agency would reach the same decision absent the errors that were made.” Xiao Ji Chen v. United States Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006) (internal quotation marks omitted); see Cao He Lin v. United States Dep’t of Justice, 428 F.3d at 401-02 (indicating that confident prediction of same result absent identified errors demonstrates futility of remand). In this case, we cannot confidently predict what credibility determination the agency would make upon remand if (a) it not only correctly recognized that the Internet material did not contradict" }, { "docid": "22626187", "title": "", "text": "claim. Pet’r’s Br. at 55. An IJ may properly deny a CAT claim if he or she finds adverse credibility with respect to facts that form the “only potentially valid basis” for the CAT claim. See Xue Hong Yang, 426 F.3d at 523; see also Xiao Ji Chen v. DOJ, 434 F.3d 144, 163 (2d Cir.2006) (“[W]here ... the applicant relies largely on testimonial evidence to establish [his] CAT claim, and does not independently establish a probability of torture apart from [his] stated fear, an adverse credibility finding regarding that testimonial evidence may provide a sufficient basis for denial of CAT relief.”). Here, the IJ and BIA both found adverse credibility with respect to the very facts which Ye now uses to support his fear of torture: his November 1993 beating and detention. See Pet’r’s Br. at 54-56. Moreover, an IJ may properly deny a claim for CAT relief when the applicant has failed to demonstrate that he is “more likely than not” to be tortured upon his removal from the United States. See Xue Hong Yang at 522 (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133-34 (2d Cir.2003)). Upon our review of the record, we find no error in either the IJ’s or BIA’s analysis in this regard. Conclusion In sum, we hold that (1)where the BIA adopts the conclusions of the IJ’s and upholds its adverse credibility finding, but does so for reasons other than those cited in the IJ’s most recent decision, we will review the decision of the IJ as supplemented by the BIA; (2) the IJ’s adverse credibility finding was supported by substantial evidence because Ye’s written asylum application and subsequent testimony contained material inconsistencies that “reach[] to the heart of the claim” of persecution; (3) inconsistencies between Ye’s written asylum application and subsequent testimony were “self-evident,” and therefore the IJ and BIA were not required to give Ye an opportunity to respond before basing an adverse credibility determination on these inconsistencies; (4) the BIA did not engage in improper fact-finding because it upheld the IJ’s adverse credibility finding based on facts already in" }, { "docid": "22763014", "title": "", "text": "and convincing evidence that he had applied for asylum within one year of his arrival in the United States and was therefore ineligible for asylum. The IJ also denied Liu’s claims for withholding of removal and CAT relief, finding Liu’s testimony regarding the alleged persecution similarly vague and nonrespon-sive. The BIA affirmed the IJ’s decision without opinion. On January 30, 2007, we issued a per curiam opinion granting the petition for review and remanding the case to the BIA. Gui Yin Liu v. INS, 475 F.3d 135 (2d Cir.2007) (per curiam). We determined that the agency erred in finding that the asylum application was untimely. Although we recognized that, pursuant to 8 U.S.C. § 1158(a)(3) and 8 U.S.C. § 1252(a)(2)(D), our jurisdiction over such discretionary determinations was limited to “questions of law,” we cited Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 327 (2d Cir.2006), for the proposition that jurisdiction may arise in the case of “fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner’s failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did tes tify to that fact.” Id. at 331 (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004)). We then vacated the IJ’s determination regarding the timeliness of the asylum application, concluding that we had jurisdiction over the issue because the IJ “unambiguously mischaracterized a central element of the record: Liu’s record with the Chinese police.” Gui Yin Liu, 475 F.3d at 138. We reasoned that the police record “expressly stated that Liu ‘had no record of committing offenses against the criminal law up to the date when he left China on June 28, 1999, during his residence in China,’ ” and “[t]he IJ’s unambiguous mischaracterization of the record raises a question of law.” Id. (emphasis in original). We further concluded that the IJ’s adverse credibility determination with respect to the asylum, withholding of removal, and CAT claims was not supported by substantial evidence. Id. at 138-39." }, { "docid": "22396057", "title": "", "text": "122, 124 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). I. Asylum Application The IJ denied petitioner’s asylum application upon finding that (1) the application was untimely and (2) petitioner did not qualify for any exceptions to the statutory filing deadline. We lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3) (placing agency determinations as to the timeliness of an asylum application beyond judicial review); see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir.2007). In addition, while we do have jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such arguments in his brief. Accordingly, we must dismiss for lack of subject matter jurisdiction the portion of his petition seeking to review the denial of his asylum claim by the IJ and the BIA. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.2006). II. Withholding of Removal: Adverse Credibility Finding Petitioner challenges the IJ’s adverse credibility determination on several grounds. First, he contends that the inconsistencies identified by the IJ are based on mischaracterizations of his testimony. Second, he argues that, even if his evidence was inconsistent, the inconsistencies in question — for example, the discrepancy between the identification numbers shown on the household register document as opposed to the identification cards belonging to petitioner and his wife — do not constitute a sufficient basis for an adverse credibility determination. Finally, he asserts that the abortion and sterilization certificates submitted in support of his application for relief did not conflict with the State Department Asylum Profiles. We find petitioner’s arguments unavailing. In Xiao Ji Chen, we noted that “the [Immigration and Nationality Act (‘INA’)] tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ.” 471 F.Bd at 333. Therefore, we undertake a “highly deferential” review of the IJ’s findings, id. at 334, “looking] to see if the" }, { "docid": "22613260", "title": "", "text": "Lin. There, we addressed the denial by an immigration judge of an application for asylum and concluded that the IJ errs if he or she rejects a document supporting the application solely because it was not properly authenticated under the BIA’s regulations. See Cao He Lin, 428 F.3d at 405. We reasoned that “[bjeeause asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor,” id., 428 F.3d at 404 (internal citation and quotation marks omitted), the BIA’s authentication regulation “is not the exclusive means of authenticating records before an immigration judge,” id.; accord Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir.2007) (noting that the IJ commits error when it “reject[s] ... documents solely because they were not authenticated in strict conformity with the regulation”); Yong Ting Yan v. Gonzales, 438 F.3d 1249, 1256 n. 7 (10th Cir.2006) (“[Cjourts generally do not view the alien’s failure to obtain authentication as requiring the rejection of a document.” (citing Cao He Lin, 428 F.3d at 404)); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001) (noting that “[t]he procedure specified in 8 C.F.R. § 287.6 provides one, but not the exclusive, method” of authentication (internal quotation marks and citation omitted)). As we have discussed, however, the BIA’s refusal to credit the Notice in this case did not depend on the lack of official authentication consonant with BIA regulations alone. The BIA’s rejection of the Notice’s authenticity was based substantially on legitimate concerns about Zheng’s credibility and contrary evidence in the record. That removes this case from the teaching of Cao He Lin. We do not reach the question of whether the BIA might err if it required strict compliance with 8 C.F.R. § 287.6 for foreign documents submitted in support of motions to reopen. We recognize that it may not be possible for an applicant filing a motion to reopen to obtain from a foreign government valid and proper authentication of a document such as the Notice, which purports to threaten persecution of an individual seeking asylum elsewhere, even if the" }, { "docid": "22073641", "title": "", "text": "omitted). Nor do we find error in the IJ’s grounding of his adverse credibility determination partially upon Chen’s failure to corroborate his claim that individuals known to his family were subjected to beatings upon their return to China. We have held previously that although “it is inappropriate to base a credibility determination solely on the failure to produce corroborative evidence,” Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000) (emphasis added), “[t]he presence or absence of corroboration may properly be considered in determining credibility,” id. See Xiao Ji Chen, 434 F.3d at 164. Finally, the IJ committed no error by relying upon Chen’s airport interview as a basis for the determination of adverse credibility. See Ramsameachire v. Ashcroft, 357 F.3d 169, 181-82 (2d Cir.2004) (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution ... the inconsistencies may render the alien’s testimony incredible.”). In particular, we find it relevant that the interview in this case (1) was recorded verbatim; (2) included questions reasonably designed to elicit details of petitioner’s asylum claim; (3) was conducted through a translator; and (4) was apparently unhindered by prior coercive experiences or interrogations. All of this suggests that Chen’s airport statements “provide a reliable record,” id. at 179, and a permissible “basis for finding the alien’s testimony incredible,” id. at 180. See id. (“If, after reviewing the record of the interview in light of these factors and other relevant considerations suggested by the circumstances of the interview, the BIA concludes that the record of the interview and the alien’s statements are reliable, then the agency may, in appropriate circumstances, use those statements as a basis for finding the alien’s testimony incredible.”). We have considered all of petitioner’s remaining arguments and find each of them to be without merit. Accordingly, the petition for review is hereby DENiEn. . Petitioner failed to raise his claim for CAT relief before the BIA and has failed to address either his withholding-of-removal claim or his CAT claim before this Court. Because petitioner did not exhaust his administrative remedies before" }, { "docid": "22702492", "title": "", "text": "of her claim for asylum of withholding of removal under the INA. Accordingly, because Lin failed to exhaust her CAT claim before the BIA, we deem it waived. See Kambolli v. Gonzales, 449 F.3d 454 (2d Cir. May 26, 2006), 2006 U.S.App. LEXIS 13143, at *8 (per curiam). . See 8 U.S.C. § 1231(b)(3)(B) (enumerating the statutory exceptions to mandatory withholding where the Attorney General determines that the alien has persecuted others, has committed certain serious crimes, or poses a danger to national security). . Where, as here, the BIA summarily affirms an IJ's decision, we review the IJ's decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). . We note one important difference in the factual postures of Cao He Lin and Xiao Ji Chen that may be relevant to future cases. As indicated above, our review in Xiao Ji Chen involved factfinding in a withholding of removal context, whereas Cao He Lin primarily involved factfinding in an asylum context. See Xiao Ji Chen, 434 F.3d at 156 n. 8 (stating that the IJ had \"conducted his adverse credibility analysis as part of his denial of petitioner's asylum application on the merits,” but concluding that the IJ’s analysis \"appl[ied] equally to the IJ's denial of petitioner's application for withholding of removal”); Cao He Lin, 428 F.3d at 398 (stating that the IJ denied the petitioner's asylum claim on the merits, followed by an automatic denial of his withholding claim based on the \"higher standard” applicable to such claims). As our Court has explained, \"[a] claim for withholding of [removal] is factually related to an asylum claim, but the applicant bears a heavier burden of proof to secure the former relief.” Zhou Yun Zhang, 386 F.3d at 71. While an applicant need establish past persecution or a \"well-founded fear” of future persecution to be eligible for asylum, in order to be granted withholding of removal, she needs to show past persecution or a \"clear probability” that, if returned to her country of origin, her life or freedom would in fact be" }, { "docid": "22073611", "title": "", "text": "of his asylum application because it was not “directly related,” within the meaning of 8 C.F.R. § 1208.4(a)(5), to his failure to meet the deadline. In any event, according to the BIA, X.W. did not file his application within a reasonable time after joining the CDP in June 2007. The BIA also perceived no clear error in the IJ’s adverse credibility determination, noting that X.W.’s testimony was at times inconsistent, vague, and nonresponsive. Nonetheless assuming that X.W.’s testimony was credible, the BIA concluded that X.W. failed to meet his burden for asylum, withholding of removal, and CAT relief on the merits because he did not establish a well-founded fear of persecution based on his activities with the CDP. The BIA agreed with the IJ that X.W.’s activities were low-level, and that there was no evidence suggesting that Chinese authorities had knowledge of them. Y.C. and X.W. now petition this Court for review of the BIA’s decisions. DISCUSSION I. Legal Standards A.Standard of Review “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Jigme Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks and brackets omitted). When the BIA does not expressly adopt the IJ’s decision, but “closely tracks the IJ’s reasoning,” we also may review both decisions. Id. We review the BIA’s “legal conclusions de novo, and its factual findings, including adverse credibility determinations, under the substantial evidence standard.” Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d Cir.2009) (citation omitted). We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Similarly, an applicant may be required to provide corroborating evidence to substantiate his or her claim or to explain why such documentation is unavailable, and an IJ may rely on the failure to submit such evidence in evaluating whether the applicant has met the relevant burden of proof. Kyaw Zwar Tun v. INS," }, { "docid": "22073612", "title": "", "text": "the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Jigme Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks and brackets omitted). When the BIA does not expressly adopt the IJ’s decision, but “closely tracks the IJ’s reasoning,” we also may review both decisions. Id. We review the BIA’s “legal conclusions de novo, and its factual findings, including adverse credibility determinations, under the substantial evidence standard.” Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d Cir.2009) (citation omitted). We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Similarly, an applicant may be required to provide corroborating evidence to substantiate his or her claim or to explain why such documentation is unavailable, and an IJ may rely on the failure to submit such evidence in evaluating whether the applicant has met the relevant burden of proof. Kyaw Zwar Tun v. INS, 445 F.3d 554, 563-64 (2d Cir.2006). B. Asylum, Withholding of Removal, and CAT Relief To establish eligibility for asylum, an applicant must show that he or she is a “refugee” — that is, a person outside the country of his or her nationality who is unable or unwilling to return to that country because he or she has suffered persecution, or has a well-founded fear of future persecution, on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42). An asylum applicant can show a well-founded fear of future persecution in two ways: (1) by demonstrating that he or she “would be singled out individually for persecution” if returned, or (2) by proving the existence of a “pattern or practice in [the] ... country of nationality ... of persecution of a group of persons similarly situated to the applicant” and establishing his or her “own inclusion in, and identification with, such group.” 8 C.F.R. § 1208.13(b)(2)(iii). Importantly, “to establish a well-founded fear of persecution" }, { "docid": "22627885", "title": "", "text": "so authorized.” 8 C.F.R. § 287.6(b)(1). In Cao He Lin v. United States Dep’t of Justice, decided after the challenged agency ruling in this case, this court held that an IJ may not dismiss evidence based merely on an applicant’s “failure to authenticate it pursuant to [§ 287.6],” 428 F.3d at 405. This rule derives from our recognition that “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor” and, therefore, “the BIA’s authentication regulation is not the exclusive means of authenticating records before an immigration judge.” Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir.2007) (internal quotation marks omitted); see also Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir.2007) (identifying error where IJ rejected “documents solely because they were not authenticated in strict conformity with the regulation” (emphasis in original)). In affording an IJ discretion to determine documents’ authenticity by reference to the totality of the evidence, we have ruled that such evidence includes any adverse finding respecting a petitioner’s credibility. See Qin Wen Zheng v. Gonzales, 500 F.3d at 147 (holding agency may use general adverse credibility finding “in support of its refusal to credit the authenticity” of document submitted by petitioner). At the same time, however, we recognize the possibility that, in circumstances where an IJ is satisfied as to the authenticity of certain documents without regard to a petitioner’s testimony, those documents may then shed favorable light on the credibility of that testimony. In sum, while we have rejected any requirement that corroborative documents strictly comply with the BIA’s authentication regulations, we afford IJs considerable flexibility in determining the authenticity of such documents from the totality of the evidence and in using documents found to be authentic in making an overall assessment of the credibility of a petitioner’s testimony and, ultimately, of her persecution claim. We express no view as to the reliability of the documentary evidence here at issue or the weight that it might bear if found to be authentic. We hold only that, in light of Cao He Lin, we now" }, { "docid": "22561181", "title": "", "text": "was entirely reasonable for the IJ to reject Chen’s explanation of her husband’s absence. Substantial evidence supports the IJ’s determination that Chen could reasonably provide corroborating evidence, as well as his finding that Chen’s explanation for the lack of corroborating evidence was insufficient. Because the IJ reasonably found that Chen did not provide sufficiently persuasive or detailed testimony and because Chen failed to submit reasonably available corroborating evidence, it was not “manifestly contrary to law” for the IJ to determine that she failed to meet her burden of establishing past persecution or a well-founded fear of future persecution. 8 U.S.C. § 1252(b)(4)(C); see Liu, 575 F.3d at 198 n. 5 (holding that “a failure to corroborate can suffice, without more, to support a finding that an alien has not met his burden of proof’). Furthermore, because “an applicant who fails to establish [her] eligibility for asylum necessarily fails to establish eligibility for withholding” of removal, Zhang v. INS, 386 F.3d 66, 71 (2d Cir.2004), the IJ correctly determined that Chen is not eligible for withholding of removal. Therefore, because we hold that the IJ’s determinations were supported by substantial evidence, we deny Chen’s petition for review. CONCLUSION To summarize: (1) The IJ’s determination that Chen’s testimony was insufficient by itself to meet her burden of proof is supported by substantial evidence. (2) The IJ’s determination that Chen’s husband was available to provide corroborating testimony was reasonable. (3) The IJ’s consequent conclusion that Chen had failed to meet her burden of proof, despite providing arguably credible testimony, was reasonable. Accordingly, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. . From this statement and others, it appears that the IJ made an adverse credibility determination under 8 U.S.C. § 1158(b)(l)(B)(iii). See also A.R. 65 (“[I]t’s clear that we have a problem as far as the testimony of the respondent.”); id. at 67 (\"I don’t believe that she had" }, { "docid": "22958161", "title": "", "text": "had no lasting physical effect. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (“[W]e recognize that the difference between harassment and persecution is necessarily one of degree that must be decided on a case-by-case basis.”); Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (finding that petitioner did not suffer persecution when detained only briefly and not mistreated while in custody), overruled in part on other grounds by Shi Liang Lin, 494 F.3d 296. Liu presented no evidence that the family planning officials who physically attacked him had any intention of arresting or detaining him. The altercation occurred only when Liu attempted to prevent the family planning officials from taking his wife, and Liu was later arrested by local police. Moreover, even assuming that the BIA misstated the Beskovic standard, we need not remand if doing so would be futile. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401-02 (2d Cir.2005). We have never held that a beating that occurs within the context of an arrest or detention constitutes persecution per se. Rather, we have held that a beating that occurs in the context of an arrest or detention may constitute persecution, and that the agency must be “keenly sensitive” to context in evaluating whether the harm suffered rises to the level of persecution. Beskovic, 467 F.3d at 226. Here, we can confidently predict that the BIA on remand would again find no persecution when it considered the mistreatment’s context, and reasonably concluded, that, in the particular circumstances presented, the harm he suffered did not rise to the level of persecution. See Ivanishvili, 433 F.3d at 341. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. . Liu’s requests for withholding of removal and CAT" }, { "docid": "22627868", "title": "", "text": "REENA RAGGI, Circuit Judge. Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. [ AXX XXX XXX ] (BIA July 16, 2004), aff'g In re Shunfu Li, No. [ AXX XXX XXX ] (Immig.Ct.N.Y.City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir.2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings. 1. Background Shunfu Li entered the United States without documentation in June 2001. In response to removal proceedings initiated by the Immigration" }, { "docid": "22541047", "title": "", "text": "on Lin’s inconsistent testimony in support of her adverse credibility determination. See Secaidcir-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003) (to form the basis of an adverse credibility determination, a discrepancy must be “substantial” when measured against the record as a whole). In addition, the IJ found that Lin had “no identity documents that [were] good and an ID card that [was], in fact, fraudulent.” Submission of inconsistent statements as well as a fraudulent document in support of an asylum application can constitute substantial evidence supporting an adverse credibility determination. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151,156-57 (2d Cir.2006); In re 0-D-, 211. & N. Dec. 1079,1083 (B.I.A. 1998) (determining that presentation of a false document in support of an asylum application can be fatal to the credibility of the applicant). Because the government’s forensics report indicated that Lin’s “Resident Identification Card” was a counterfeit, and Lin’s only explanation was that it was bought from the public security office, the IJ reasonably concluded that this submission fatally undermined Lin’s overall credibility. Id.; id. The IJ also relied Lin’s failure to call as witnesses his cousin — who was living in New Jersey — or members of his current parish in New York. An applicant’s failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Because Lin’s testimony was not otherwise credible, the IJ properly relied on the lack of corroborative evidence. Moreover, here, the IJ warned Lin before his actual hearing that she (a) would give the letter attesting to his church membership no weight in the absence of a witness, and (b) would give his cousin’s affidavit “no weight whatsoever.” In sum, the IJ’s adverse credibility determination was supported by substantial evidence in light of the record as a whole. The factors that the IJ properly relied upon were central to Lin’s claim of persecution. We note, however," }, { "docid": "23158488", "title": "", "text": "or denied both withholding and CAT protection, there will be an “order of removal” that will eventually become final and subject to this Court’s jurisdiction for review. Incidentally, we note that our decision does not preclude Chupina from filing a petition for review of the agency’s denial of his asylum application, and of the BIA’s reconsideration of that decision, once the agency has fully adjudicated his remaining applications for withholding of removal and protection under the CAT. Furthermore, Chupina need not appeal to the BIA the denial or grant of his applications for withholding of removal and protection under the CAT in order to preserve his exhausted claim that the denial of his asylum application was in error. See 8 U.S.C. § 1252(d)(1). Rather, in the event that no appeal is made to the BIA by either Chupina or the government following the adjudication of Chupina’s pending applications, Chupina may challenge the denial of his asylum application within thirty days after the immigration judge’s decision regarding his applications for withholding of removal and protection under the CAT becomes final, see id. § 1252(b)(1) (“The petition for review must be filed not later than 30 days after the date of the final order of removal.”); see also 8 C.F.R. § 1003.39 (“Except when certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of appeal or upon the expiration of the time to appeal [to the BIA] if no appeal is taken whichever [sic] occurs first.”), assuming, of course, that Chupina’s petition indeed raises a colorable constitutional claim or question of law to overcome 8 U.S.C. § 1158(a)(3)’s jurisdictional bar, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir.2006). III. CONCLUSION For the foregoing reasons, the government’s motion to dismiss is GRANTED and the petitions for review are DISMISSED for lack of jurisdiction. The government’s motion to stay briefing and Chupina’s motion to proceed in forma pauperis are DENIED as moot. . We hereby formally consolidate the petitions filed under docket numbers 08-0867-ag and 08-3394-ag, designating 08-0867-ag as the lead petition." }, { "docid": "22627884", "title": "", "text": "consistent with Li’s testimony that she served without remuneration. c. Unauthenticated Official Documents Li’s claim of past persecution and feared future persecution found its strongest corroboration in a group of purportedly official documents that (1) had authorized her 2000 arrest and the seizure of Falun Gong materials from her home, and (2) now authorize her arrest upon return to China. If these documents are as represented, i.e., if Li was in fact arrested for Falun Gong activities and if Chinese officials are now looking to arrest Li upon her return to China, this evidence might cast Li’s testimony in a decidedly more favorable light. The IJ never considered this possibility. She concluded that the documents were entitled to no weight because they were not authenticated pursuant to relevant regulations. While the IJ did not identify the regulations relied upon, we presume that she was referring to 8 C.F.R. § 287.6, which generally requires official records from foreign countries to be authenticated by (1) “an official publication thereof,” or (2) “a copy attested by an officer so authorized.” 8 C.F.R. § 287.6(b)(1). In Cao He Lin v. United States Dep’t of Justice, decided after the challenged agency ruling in this case, this court held that an IJ may not dismiss evidence based merely on an applicant’s “failure to authenticate it pursuant to [§ 287.6],” 428 F.3d at 405. This rule derives from our recognition that “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor” and, therefore, “the BIA’s authentication regulation is not the exclusive means of authenticating records before an immigration judge.” Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir.2007) (internal quotation marks omitted); see also Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir.2007) (identifying error where IJ rejected “documents solely because they were not authenticated in strict conformity with the regulation” (emphasis in original)). In affording an IJ discretion to determine documents’ authenticity by reference to the totality of the evidence, we have ruled that such evidence includes any adverse finding respecting a petitioner’s credibility. See" }, { "docid": "22768097", "title": "", "text": "corroborating evidence. The IJ did not err in denying Liu’s application for withholding of removal on that ground, and the BIA properly affirmed. CONCLUSION For the foregoing reasons, the petition for review is denied. . The REAL ID Act’s credibility standard applies to applications filed on or after May 11, 2005; Liu's application was filed on July 15, 2004. See REAL ID 4f 101(h)(2), Pub.L. No. 109-13, 119 Stat. 231, 305 (2005). For this reason, the BIA properly reviewed the IJ’s determination that Liu needed additional corroboration under the pre-REAL ID standard. . This provision of the REAL ID Act applies to petitions for both asylum and withholding of removal. See 8 U.S.C. § 1231(b)(3)(C) (\"In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in sub-paragraph (A), the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.”). . Judge Parker believes this provision contains a notice requirement applicable to cases that post-date the REAL ID Act of 2005. . The REAL ID Act impacts our review of \"all cases in which the final administrative removal order is or was issued before, on, or after” May 11, 2005. REAL ID Act § 101(h)(3), Pub.L. No. 109-13, 119 Stat. 231, 305-306 (2005). . \"An [alien’s] failure to corroborate his testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.” Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007). Nevertheless, credibility and corroboration are distinct principles in this Circuit's immigration jurisprudence. The critical distinction is this: while a failure to corroborate can suffice, without more, to support a finding that an alien has not met his burden of proof, a failure to corroborate cannot, without more, support an adverse credibility determination. Duan Chen v. Gonzales, 201 Fed.Appx. 107, 109 (2d Cir.2006) (citing Diallo, 232 F.3d at 287). . It is" } ]

[ { "docid": "22731399", "title": "", "text": "1063 (1973). I Petitioner contends that any charge of contempt of court, without exception, must be tried to a jury. Quite to the contrary, however, our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Cheff v. Schnackenberg, 384 U. S. 373 (1966); Bloom v. Illinois, 391 U. S. 194 (1968); Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216 (1968); Frank v. United States, 395 U. S. 147 (1969) ; Baldwin v. New York, 399 U. S. 66 (1970). Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of Appeals held, equivalent to a single sentence of six months. Cf. Codispoti v. Pennsylvania, post, p. 506. The original sentences imposed on the separate counts were to run consecutively and totaled almost four and one-half years, with two individual counts each carrying a year’s sentence. But the trial court itself entered an amended judgment which was understood by the Kentucky Court of Appeals to impose no more than a six- month sentence. The eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required. It is argued that a State should not be permitted, after conviction, to reduce the sentence to less than six months and thereby obviate a jury trial. The thrust of our decisions, however, is to the contrary: in the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months. We discern no material difference between this choice and permitting the State, after conviction, to reduce a sentence to six months or less rather than to retry the contempt with a jury. Cf. Cheff v. Schnackenberg, supra, at 380. In either" } ]

[ { "docid": "3586924", "title": "", "text": "has observed the contemptuous act, there is “no need of evidence or assistance of counsel before punishment.” Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925). Second, the maintenance of courtroom decorum sometimes necessitates quick and forceful action. Id. More recent Supreme Court eases have placed less emphasis on the “efficiency”, justification for summary adjudication. See e.g., Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (judge’s observation of criminal act may obviate the need for a full-scale trial of a contemnor, but basic notice and hearing are still required); Codispoti v. Pennsylvania, 418 U.S. 506, 515-16, 94 S.Ct. 2687, 2692-93, 41 L.Ed.2d 912 (1974). However, resting mainly on the need to maintain courtroom order, summary contempt adjudication remains a viable judicial power where the “necessity of circumstances” warrants. Codispoti v. Pennsylvania, supra, 418 U.S. at 515, 94 S.Ct. at 2692. B. Conflicts of Values Despite the Supreme Court’s acknowledgment of summary contempt authority as a necessary component in our justice system, the Court nevertheless has placed significant limits on the historically broad power. The inescapable clash between summary adjudications of contempt and basic due process rights has been explicitly recognized by the Court. See Offutt v. United States, supra, 348 U.S. at 14, 75 S.Ct. at 13. Reciting a list of cases in which appellate courts had found abuse of the contempt power, Justice White, in Bloom v. Illinois, 391 U.S. 194, 207, 88 S.Ct. 1477, 1485, 20 L.Ed.2d 522 (1968), cautioned against “vesting the judiciary with completely untrammeled power to punish contempt.” Indeed, it is well established that the contempt power carries with it a great potential for abuse; its exercise must be delicate and care should be taken to avoid arbitrary or oppressive results. Id. at 202, 88 S.Ct. at 1482. See also Cooke v. United States, supra, 267 U.S. at 539, 45 S.Ct. at 395; Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952). Supreme Court decisions regarding the proper scope of summary contempt authority have been based" }, { "docid": "8147271", "title": "", "text": "the same protection as the tolling provision. Furthermore, the defendants’ argument suffers from a more basic flaw. Even if the tolling provision could be considered superfluous in light of the “John Doe” procedure, this would not necessarily lead to our holding that the tolling provision is arbitrary or irrational. Nothing in law or logic prevents the New Jersey legislature from providing New Jersey plaintiffs with a mechanism for relief from the burdens of suits against non-represented foreign corporations which is additional to any mechanism found in the Court Rules. Accordingly, since we find that N.J.S.A. § 2A: 14-22 has a rational foundation, and recognizing that rationality is the test for both due process and equal protection challenges in this context, see Maimed v. Thorn-burgh, supra, we reject the defendants’ constitutional attacks on the statute. III. We therefore hold that the foreign corporate defendants in these cases, not being represented in New Jersey, are subject under New Jersey law to New Jersey’s tolling provision, which we hold to be constitutional. Thus, in these cases, defendants may not claim the protection of the statute of limitations. In light of our conclusion, the interlocutory order of the district court which denied summary judgment in Hopkins v. Kelsey-Hayes, at No. 79-1881, will be affirmed, and the order of the district court in Cohn v. G. D. Searle, at Nos. 79-2406 and 79-2605, entering judgment for the defendant will be reversed. Each case will be remanded to the particular district court for further proceedings. Costs in each case will be taxed against the respective defendant. . Although these cases were tried separately before two different district court judges, because they involve identical challenges to the constitutionality of a New Jersey statute, N.J. S.A. § 2A: 14-22, we consolidated them for the purposes of oral argument and disposition. . Rule 4:4 — 4(c)(1) permits long-arm service upon out-of-state corporations in the following circumstance: If it appears by affidavit of plaintiff’s attorney or of any person having knowledge of the facts that after diligent inquiry and effort personal service cannot be made upon any of the foregoing" }, { "docid": "4074826", "title": "", "text": "Private Works Act did not apply to any underground structures. Giving every possible presumption to the soundness of this language, we can find nothing in the statutory history or other case reports to support this broad language except the case it cites, Calatex. Calatex also involved a well, and the broadest scope of its language, whether dictum or not, held only that the Public Works Act did not apply to wells. As the district court below noted, the above-below ground dichotomy is not a child of Calatex, but solely of Hayes. Looking solely at the language of § 9:4801, we would have difficulty adhering to the view that wells were not encompassed within its scope were it not for the specific holdings of the Louisiana courts. These holdings are based on the sound reasoning that wells are specifically covered by a separate statute and the coverage of wells is not preempted by the Private Works Act. There is no similar reason to withdraw all underground immovable property from the Private Works Act. For this reason we adhere to the district court’s holding that Hayes must be read as meaning no more than what was necessary for it to decide, and this, shown by its reliance on Calatex, is limited to holding that the Private Works Act does not apply to oil wells. The Louisiana Supreme Court, we recognize, is the final interpreter of the meaning of Louisiana statutes. Where the broad language of a state court would apparently do damage to the plain meaning of that state’s statute, the language of the case report must be examined carefully. In holding as we do, we do no violence to the express holding of Hayes — that oil wells are not covered by the Private Works Act. Even if the state legislature had excluded below-ground structures from § 9:4801, an argument which we reject, we can conceive of no rational argument for drawing the statute’s boundaries in all cases at the level of the surrounding soil. To accept Texaco’s argument would be to exclude foundations, pilings and cellars from the statute’s coverage," }, { "docid": "22951602", "title": "", "text": "the rule of Maurello [citation omitted], the court should have attempted to determine whether any of the services performed by defendant had value.” Hayes, 242 F.3d at 115. We held that Maurello controlled and vacated and remanded for resentencing “[b]ecause, had the District Court applied Maurello, it might have fixed a lower offense level resulting in a lesser sentence than the year and a day sentence imposed.” Id. Antico argues that the District Court should have applied the Maurello/Hayes logic in this case. Inasmuch as none of Ricciardi’s clients were harmed, he insists the loss should be zero and no enhancement be applied. We reject Antico’s reliance on Maurello and Hayes, which did not decide the issue of loss from honest services fraud, in favor of the clear outcome mandated by the Sentencing Guidelines in this case. “If the loss to the government, or the value of anything obtained or to be obtained by a public official or others acting with a public official, whichever is greater, exceeded $2,000, increase by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit).” U.S. Sentencing Guidelines Manual § 2C1.7(b)(l)(A). The amount Ricciardi received — by “acting with the public official” — is the correct measure of loss under this section. Therefore, the District Court’s calculation of the loss at $770,284 was not clearly erroneous. In summary, we vacate the sentence imposed by the District Court in this case and remand for three reasons. First, the District Court needs to determine whether our reversal of conviction on Counts Seventeen and Eighteen has any effect on its decision to sentence within the sentencing range on the fraud grouping of offenses. Second, we vacate and remand for the District Court to conduct the necessary inquiry with respect to Antico’s aggravating role in the extortion scheme, as set forth in United States v. Helbling, 209 F.3d 226 (3d Cir.2000), and this opinion. Finally, the District Court must reconsider its decision to sentence Antico based on the extortion grouping of offenses after recalculating the sentence for each of the wire fraud group and" }, { "docid": "164646", "title": "", "text": "v. Pennsylvania, 400 U.S. 455, 463-64, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971), a unanimous Court emphasizing due process requirements held that where the trial judge fails to act “the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place.” Since the state court judge failed to do so, the attorney’s contempt conviction was reversed and the case remanded for trial before another judge. Finally, we examine Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), which is nearly indistinguishable from the instant case. In that case a Kentucky trial judge held counsel for defendant — on trial for the murder of two police officers — in contempt on nine different occasions during the trial. On each occasion the judge told counsel that he was in contempt of court. At the conclusion of the trial, the judge imposed sentence for each contempt. When the lawyer attempted to speak, the trial judge refused to permit him to respond. The Supreme Court reversed and remanded the case to another trial judge. Where conviction and punishment are delayed, the Court noted that it is much more difficult to argue for preservation of the court’s dignity. It went on to hold that “before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf.” Id. at 498-99, 94 S.Ct. at 2703. See also Codispoti v. Pennsylvania, 418 U.S. at 515, 94 S.Ct. at 2692; Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972); Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353, 362-63 (1959). Justice Rehnquist, for one, finds the holding in Taylor “squarely contrary to the holding in Sacher,\" Codispati v. Pennsylvania, 418 U.S. at 525, 94 S.Ct. at 2707 (Rehnquist, J., dissenting), and, while a factual distinction" }, { "docid": "22066227", "title": "", "text": "status and the settlement value of his own case”); Connally v. Georgia, 429 U. S. 245, 250 (1977) (per curiam). It may also violate due process when a judge presides over a criminal contempt case that resulted from the defendant’s hostility towards the judge. In Mayberry v. Pennsylvania, 400 U. S. 455 (1971), the defendant directed a steady stream of expletives and ad hominem attacks at the judge throughout the trial. When that defendant was subsequently charged with criminal contempt, we concluded that he “should be given a public trial before a judge other than the one reviled by the contemnor.” Id., at 466; see also Taylor v. Hayes, 418 U. S. 488, 501 (1974) (a judge who had “become embroiled in a running controversy” with the defendant could not subsequently preside over that defendant’s criminal contempt trial). Our decisions in this area have also emphasized when the. Due Process Clause does not require recusal: . “All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey, supra, at 523; see also Lavoie, supra, at 820. Subject to the two well-established exceptions described above, questions of judicial recusal are regulated by “common law, statute, or the professional standards of the bench and bar.” Bracy v. Gramley, 520 U. S. 899, 904 (1997). In any given case, there are a number of factors that could give rise to a “probability” or “appearance” of bias: friendship with a party or lawyer, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations. We have never held that the Due Process Clause re quires recusal for any of these reasons, even though they could be viewed as presenting a “probability of bias.” Many state statutes require recusal based on a probability or appearance of bias, but “that alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause.” Lavoie, supra, at 820 (emphasis added). States are, of course, free to" }, { "docid": "7971615", "title": "", "text": "attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. . A further constitutional limitation on the use of summary contempt was announced in Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). In Taylor, the Court held that due process requires some sort of hearing before punishment is imposed, at least when a final adjudication of contempt and sentencing are postponed until after the trial at which the act of contempt was committed. Komie contends that he was deprived of such a hearing. Given our disposition of this appeal, we do not address Komie’s due process argument. . A trial court need not impose instant punishment to invoke Rule 42(a). Sacher v. U.S., 343 U.S. 1, 9-10, 72 S.Ct. 451, 455-56, 96 L.Ed. 717 (1952); Local Union 542, supra, 552 F.2d at 512-13. But here, the trial court did not even proceed under Rule 42(a) at the conclusion of the trial and, as this court has noted, “it is settled that a later citation for contempt may require more in the way of procedural protection than would have been necessary for instant action.” United States v. Seale, 461 F.2d 345, 355 (7th Cir.1972). . We reject Komie’s argument that as a matter of law he committed no act of contempt under this standard. Whether Komie wilfully violated a clear and specific court order is a question we leave for consideration on remand." }, { "docid": "22871910", "title": "", "text": "history, and it cannot be squared with our precedents. The Sixth Amendment guarantees a jury trial to a defendant charged with a serious crime. Duncan v. Louisiana, 391 U. S. 145, 159 (1968). Serious crimes, for purposes of the Sixth Amendment, are defined to include any offense which carries a maximum penalty of more than six months in prison; the right to jury trial attaches to those crimes regardless of the sentence in fact imposed. Id., at 159-160. This doctrine is not questioned here, but it does not define the outer limits of the right to trial by jury. Our cases establish a further proposition: The right to jury trial extends as well to a defendant who is sentenced in one proceeding to more than six months’ imprisonment. Codispoti v. Pennsylvania, 418 U. S. 506 (1974); Taylor v. Hayes, 418 U. S. 488 (1974). To be more specific, a defendant is entitled to a jury if tried in a single proceeding for more than one petty offense when the combined sentences will exceed six months’ imprisonment; taken together, the crimes then are considered serious for constitutional purposes, even if each is petty by itself, Codispoti v. Pennsylvania, supra, at 517. The defendants in Codispoti and Taylor had been convicted of criminal contempt without juries in States where the legislatures had not set a maximum penalty for the crime. Taylor was convicted of nine separate contempts and sentenced to six months in prison.. The Court held he was not entitled to a jury trial. Since the total sentence was only six months’ imprisonment, the “eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required.” Taylor v. Hayes, supra, at 496. Codispoti, by contrast, was convicted of seven contempts, and he was sentenced to six terms of six months’ imprisonment and one term of three months’ imprisonment, each to run consecutively — a total of 39 months. We held he was entitled to a trial by jury because his aggregate sentence exceeded six months. In Codispoti, Pennsylvania made the same argument the United States" }, { "docid": "22244635", "title": "", "text": "States v. Sorcey, 7 Cir., 151 F.2d 899, certiorari denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021; Ginsberg v. United States, 5 Cir., 96 F.2d 433; Jackson v. United States, 9 Cir., 102 F. 473. This court has used language which might indicate that appellate courts have power to interfere if a sentence is “clearly cruel and unusual,” but it has never done so. Hayes v. United States, supra; Richards v. United States, 10 Cir., 193 F.2d 554, certiorari denied, Krupnick v. U. S., 343 U.S. 930, 72 S. Ct. 764, 96 L.Ed. 1340; Schultz v. Zerbst, 10 Cir., 73 F.2d 668. In Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732, we said: “where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual.” See also Edwards v. United States, supra. Until the Supreme Court sees fit to hold that Section 2106 applies in such cases, we think this court should apply what appears to be the fixed rule. Affirmed. . Other cases taking a view contrary to the Unjan case or indicating a contrary view are: O’Neal v. United States, 5 Cir., 264 F.2d 809; United States v. Bertone, 3 Cir., 249 F.2d 156; Drown v. United States, 9 Cir., 198 F.2d 999, certiorari denied, 344 U.S. 920, 73 S.Ct. 385, 97 L.Ed. 709; Pugh v. United States, 9 Cir., 397 F.2d 509; Godwin v. United States, 8 Cir., 185 F.2d 411. . Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 LEd. 335, considered Section 2106 in connection with the right of an appellate court to remand a criminal case for a new trial after holding the evidence insufficient to sustain the conviction MURRAH, Chief Judge (dissenting in part). Since the inception of our federal judicial system in 1789, the appellate courts have been empowered to “affirm, modify, vacate, set aside or reverse any-judgment, decree, or order * * * and direct the entry of such appropriate judgment, * * * as may be just under the circumstances.”" }, { "docid": "23233393", "title": "", "text": "determined by the Supreme Court.” Although Green would have us award habeas relief upon the basis of any federal claim that the Supreme Court has not specifically “disavowed,” such an interpretation would transform habeas review under amended 2254(d)(1) into a one-way ratchet whereby a state court must resolve all open questions of federal law in the defendant’s favor in order to prevent the conviction or sentence from being vacated on habeas review. Rather, as we discussed supra, petitioner is entitled to habeas relief only if he can demonstrate that the state court’s rejection of his allocution claim was at odds with directly controlling Supreme Court precedent, or else applied Supreme Court precedent in a patently unreasonable way. It follows from this interpretation of section 2254 that, the North Carolina Supreme Court’s decision rejecting Green’s allocution claim was not “contrary to” clearly established Supreme Court caselaw. Not only is there no Supreme Court case holding that someone in Green’s position has been denied a constitutional due process right to allocution, but the Supreme Court on more than one occasion has specifically mentioned that the .merit of such a claim is an open question. Hill, 368 U.S. at 429, 82 S.Ct. at 471-72; McGautha, 402 U.S. at 219 n. 22, 91 S.Ct. at 1473 n. 22. Furthermore, none of the other Supreme Court decisions cited by petitioner clearly establishes the existence of such a due process right of allocution. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (invalidating summary contempt conviction of attorney on due process grounds in a ease where contempt was adjudicated and punishment imposed after the close of court proceedings and contemnor was not afforded notice or an opportunity to respond to contempt charges); Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972) (holding state legislature had imposed the punishment of legislative contempt in violation of due process because it failed to provide contemnor with notice or an opportunity to respond); Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218 (1892) (common law practice of allocution" }, { "docid": "257848", "title": "", "text": "“it is difficult to understand how an adult’s selection of a partner to share sexual intimacy is not immune from burden by the state as an element of constitutionally protected privacy. That the particular choice of partner may be repugnant to the majority argues for its vigilant protection — not its vulnerability to sanction.” Appellant's Opening Brief on Appeal at 13. This theory that majority morality and majority choice is always made presumptively invalid by the Constitution attacks the very predicate of democratic government. When the Constitution does not speak to the contrary, the choices of those put in authority by the electoral process, or those who are accountable to such persons, come before us not as suspect because majoritarian but as conclusively valid for that very reason. We stress, because the possibility of being misunderstood is so great, that this deference to democratic choice does not apply where the Constitution removes the choice from majorities. Appellant’s theory would, in fact, destroy the basis for much of the most valued legislation our society has. It would, for example, render legislation about civil rights, worker safety, the preservation of the environment, and much more, unconstitutional. In each of these areas, legislative majorities have made moral choices contrary to the desires of minorities. It is to be doubted that very many laws exist whose ultimate justification does not rest upon the society’s morality. For these reasons, appellant’s argument will not withstand examination. We conclude, therefore, that we can find no constitutional right to engage in homosexual conduct and that, as judges, we have no warrant to create one. We need ask, therefore, only whether the Navy’s policy is rationally related to a permissible end. See Kelley v. Johnson, 425 U.S. 238, 247-49; 96 S.Ct. 1440, 1445-47, 47 L.Ed.2d 708 (1976). We have said that legislation may implement morality. So viewed, this regulation bears a rational relationship to a permissible end. It may be • argued, however, that a naval regulation, unlike the act of a legislature, must be rationally related not to morality for its own sake but to some further end" }, { "docid": "8147253", "title": "", "text": "purpose, the court concluded that the tolling provision was no longer relevant in cases where the out-of-state defendant was now subject to the long-arm jurisdiction of the New Jersey courts — a jurisdictional expansion which, in New Jersey, post-dated the 1949 amendment to the tolling provision. Therefore, the district court held that the continued application of the tolling provision in cases such as this one served no rational purpose and consequently violated the United States Constitution. See 447 F.Supp. at 910-12. Both parties appealed from the judgment of the district court. In No. 79-2605, Searle contends that the district court erred by concluding that the presence of its detail-persons in New Jersey did not entitle it to the benefit of the statute of limitations. In No. 79-2406, the Cohns argue, contrary to the district court’s holding, that the tolling provision is a rational exercise of the legislature’s prerogative and is thus constitutional. B. In the second appeal before us, Hopkins v. Kelsey-Hayes, Inc., the plaintiff, Hopkins, was injured on May 18, 1975 when a tire mounted on a rim which had been manufactured by Kelsey-Hayes exploded. This lawsuit was filed on April 27, 1978, nearly three years after plaintiff’s cause of action had accrued. Kelsey-Hayes is a Delaware corporation, which has never been represented in New Jersey. However, at all times it has been subject to New Jersey’s long-arm jurisdiction. Before a different district court judge than the judge who presided in Cohn v. G. D. Searle, Inc., Kelsey-Hayes claimed the benefit of New Jersey’s two year statute of limitations and moved for summary judgment. Plaintiff responded that the running of the limitations statute was tolled by N.J. S.A. § 2A:14-22, see note 4 supra, and that therefore its complaint was not barred. Alternatively, the plaintiff argued that the statute was tolled under New Jersey’s “discovery rule,” see Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973), Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961), under which the statute does not begin to run until the plaintiff has had a reasonable opportunity to “discover” the identity of" }, { "docid": "3586929", "title": "", "text": "observing that the contemptuous act has usually occurred before the judges own eyes and that a reporter’s transcript is available. Ibid. In Codispoti v. Pennsylvania, supra, 418 U.S. at 514, 94 S.Ct. at 2692, the Court refused to extend the right to a jury trial beyond “serious” contempts adjudicated and sentenced posttrial. The right to a jury trial does not counterbalance the need for courtroom order when a judge summarily adjudicates and punishes petty con-tempts during trial — even if the punishment imposed for the separate contemptuous acts exceeds six months. Id. Justice White explained by citing the “[need] to maintain order in the courtroom” and the “integrity of the trial process in the face of an ‘actual obstruction of justice.’ ” 3. The Need for Courtroom Order as a Factor in Resolving Conflicts Codispoti v. Pennsylvania, Taylor v. Hayes and Bloom v. Illinois are instructive with regard to the issue before us in this case. From these cases it is apparent that the need to maintain courtroom order has often been the central factor in Supreme Court resolutions of conflicts between due process and the contempt power. The right to notice and hearing established in Taylor v. Hayes, and the jury trial right established in Codispoti v. Pennsylvania, both hinged upon reasoning that the need to maintain courtroom order is much less when the judge postpones adjudication and sentencing of the contempt until after trial. Despite the Court’s emphasis on the importance of maintaining courtroom order, the factor has not been an absolute in relevant Supreme Court decisions. Bloom v. Illinois held that the right to a jury trial for “serious” contempts prevails over the need for immediate action in restoring courtroom order. We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not to be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice. Genuine respect, which alone can lend true dignity to our judicial establishment," }, { "docid": "14764961", "title": "", "text": "in civil liberties cases must yield to more particularistic analysis.’ The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.” Kingsley Books, Inc. v. Brown, supra, 354 U.S. at 441-442, 77 S.Ct. at 1328. The particularistic analysis ultimately requires a choice between conflicting interests to determine' whether a limitation in expression is mandated on the basis of a threat to the defendant’s Sixth Amendment right to receive a trial by an impartial jury. We must not be insensitive to the dangers that lurk in any choice, but the high responsibilities of this judicial office require that a choice be made. It does not augur well to postpone this choice, or to pass this burden to another time. I am persuaded that in this case the scales must be tipped to vindicate the defendant’s fundamental right to receive a fair trial at the expense of some limited impairment of First Amendment rights. The procedure followed by the district court here, in the exercise of its inherent powers to “take strong measures to insure that the balance is never weighed against the accused” and to invoke the power enunciated in Branzburg v. Hayes, supra, was proper. I am aware that a certain institutional value is affixed to any decision of this court, but the genius of our jurisprudential tradition is that the parameters of a holding are limited to the factual complex that creates it. Here the facts do not fit the mold of classic prior restraint; it was a restraint upon a repetition of previously disseminated public utterances. The publication was not “hot news.” The restraint was upon repetitive, not original, publication. Moreover, the judicial ban was not open-ended; it was restricted to an extremely limited period of time, in the words of the court, “for one more day.” I would conclude that any interest here protected by the First Amendment must be subordinated, under the circumstances of this case, to countervailing interests protected by the Sixth Amendment. I would affirm the judgment of the district court. . Cf. United States v. Nixon, 418 U.S. 683, 690-692, 94 S.Ct. 3090, 41" }, { "docid": "22624492", "title": "", "text": "supra, at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 624-625 (Scalia, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement — expressed in international law or in the domestic laws of individual countries — that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact. * * * In determining whether the Eighth Amendment permits capital punishment of a particular offense or class of offenders, we must look to whether such punishment is consistent with contemporary standards of decency. We are obligated to weigh both the objective evidence of societal values and our own judgment as to whether death is an excessive sanction in the context at hand. In the instant case, the objective evidence is inconclusive; standing alone, it does not demonstrate that our society has repudiated capital punishment of 17-year-old offenders in all cases. Rather, the actions of the Nation’s legislatures suggest that, although a clear and durable national consensus against this" }, { "docid": "8791719", "title": "", "text": "trial if the criminal contempt was a “serious” as opposed to a “petty” offense. The “exact location of the line between petty offenses and serious crimes” has not been clearly established. Duncan v. Louisiana, supra at 161, 88 S.Ct. at 1454. The seriousness or pettiness of an offense is usually determined by reference to the punishment authorized by the statute. See An-not., supra at 819. The Supreme Court has held that “when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” Bloom v. Illinois, supra at 211, 88 S.Ct. at 1487. By analogy, the Supreme Court has looked to the definition of petty offenses under 18 U.S.C. § 1(3) which provides that a petty offense is one “the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both.” While the Supreme Court has stressed that the definition should not be accorded “talismanic significance,” Mun-iz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1974), it has held that imprisonment of a contemnor for longer than six months without also granting an opportunity for a jury trial is constitutionally impermissible. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Frank, v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). It has held, however, that it “cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. * * * From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different.” Muniz v. Hoffman, supra at 477, 95 S.Ct. at 2190. Applying this rationale, the Supreme Court" }, { "docid": "23565818", "title": "", "text": "there will be a possibility that the decision is the product of a mental disease, disorder, or defect. Yet, Rees clearly contemplates that competent waivers are possible, see also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), and there is little point in conducting a competency inquiry if a finding of incompetency is virtually a foregone conclusion. The petitioners also assert that the District Court erred by construing Rees’s requirement that Smith have the capacity to appreciate his position and to make a rational choice to require only that he be cognizant of his factual circumstances, and that his choice be logical, the product of a process of reason. The problem with this, they explain, is that in evaluating competency, it is necessary not only to test the individual’s ability to reason, but also to determine whether he or she is reasoning from premises or values that are within the pale of those which our society accepts as rational. Logic employed in the service of irrational premises does not produce a rational decision. We agree with the petitioners that it is not sufficient simply to determine whether a waiver decision has been arrived at logically, but we conclude that the District Court did not limit its inquiry in this manner. The District Court’s opinion does not articulate such a constricted view of the question, see, e.g., 632 F.Supp. at 508-09, 514-15, and, moreover, the Court examined the rationality of the values and beliefs underlying Smith’s decision, including his aversion from confinement, and his conclusion that, in any case, he will be unable to avoid a life sentence, see, e.g., id. at 513 & n. 26, 514 & n. 29; 515 & n. 31. The petitioners launch a number of assaults upon the factual findings underlying the District Court’s competency determination, arguing, inter alia, that the District Court erred in relying upon the psychiatrists who found Smith competent rather than those who found him incompetent, and in failing to find that Smith irrationally failed to consider all his values and alternatives. We review these factual findings" }, { "docid": "23085219", "title": "", "text": "process and to prevent contract law from dominating the military justice system. See United States v. Andreason, supra; United States v. Cox, supra. Be this as it may, some elements of plea bargaining necessarily entail a basic application of contract law and marketplace principles. See Borderkircher v. Hayes, supra. In this light, we do not believe United States v. Goode, supra, permits the present parties to ignore the basic element of contract law which is missing from their pretrial agreement. The material conditions of their contract must be sufficiently definite or certain. Uncertainty, as in the present case, could lead to the enforcement of the pretrial agreement at the whim or caprice of the convening authority, and that cannot be tolerated. See United States v. Lallande, supra. To repeat, this Court has discouraged the use of expansive pretrial-agreement provisions by military authorities. Such a position rests in part on our concern that these agreements accomplish a just and fair determination of the charges outstanding against a servicemember for himself and the military society. Properly limited plea bargaining has been recognized as a valuable component of our justice system. In this light, we do not believe United States v. Goode, supra, intended that these agreements be employed carte blanche so as to impair public confidence in this important element of our justice system or discourage its use. See United States v. Schreck, 9 M.J. 217 (C.M.A.1980). Finally, this Court has clearly stated that pretrial-agreement provisions which entail waivers of constitutional or codal rights otherwise not waived by a guilty plea are void. See United States v. Holland, supra; United States v. Cummings, supra. Our decisions have primarily dealt with certain trial rights of an accused which are not waived by his pleas. We do not believe that United States v. Goode, supra, can be read to support additional waivers of constitutional or codal rights of similar magnitude which concern subsequent alleged violations of the military criminal code. Cf. Martinez v. Romero, 626 F.2d 807, 809 (10th Cir.1980); United States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226 (1963). It was error" }, { "docid": "863257", "title": "", "text": "But this must be accommodated to the need for reasonable latitude for the selection of topics for discussion in newspapers. That right of the press, likewise supported by constitutional guarantees, is crucial to the vitality of democracy. The courts are called upon here, as elsewhere in the law, to harmonize individual rights and community interests.” (footnote omitted.) Recent decisions of the Supreme Court, we feel, also strengthen our conclusion. These decisions serve to emphasize that First Amendment interests may be circumscribed due to competing values which are also of substantial importance to society. U. S. Civil Service Commission v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). More particularly, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ackriowledged the need to recognize the strength of legitimate state interests in protecting the well-being of its citizens, even in the face of a broad First Amendment challenge. The state’s interest in protecting the privacy of its citizens seems to us no less legitimate than the state’s interest, upheld in Gertz, in protecting its citizens’ reputations. Indeed, privacy shares the same underlying purpose invoked by the Court in Gertz hi upholding the state’s interest in the law of libel; for privacy, no less than reputation, “ ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual states under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.’ Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (concurring opinion),” cited in Gertz v. Robert Welch, Inc., supra at 341, 94 S.Ct. at 3008. . See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 122, 93" }, { "docid": "17654742", "title": "", "text": "similar. Since this may not be the exact point of the contention, the matter will be considered in other connections later. Finally, the opinion of the Court of Appeals and a concurring opinion in the Supreme Court gave approval of instructions of the trial judge in Dennis requiring the jury to find “language of incitement” was used by the conspirators there. Another phrase given approval is that the doctrine of destruction had become a “rule of action.” In conjunction with an indictment based upon such a statute proscribing organization for the purpose of teaching and advocating overthrow, but which required neither proof of overt acts nor a specifically planned objective, such precautionary instructions were well enough. But these expressions of the judges in instructions in connection with the original statute established no unalterable requirement that such phrases themselves be used ipsissimis verbis where the changes in the basic law and an entirely different indictment predicated upon the conspiracy statute have rendered admonitions to a jury in such language supererogatory. Such claims have been answered in the main opinion in Dennis: “Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. * * * To those who would paralyze our Government in the face of impending threat by encasing it in a semantic strait jacket we must reply that all concepts are relative.” Defendants themselves say that there were significant legal and factual differences between the situation in the Dennis case and the case at bar. We agree. The situation has been changed by far-reaching legislation and rulings in further and complete protection of the rights of these defendants. As a result, there are vital distinctions between this case and those which have been previously ruled upon. The question is whether the" } ]

[ { "docid": "20109608", "title": "", "text": "the third circuit also ordered that the district court consider the effect of Crawford Fitting Co. v. J. T. Gibbons, Inc., — U.S. -, [107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) ], on the expert witness fee expenses issued. In Crawford the Supreme Court held that when a prevailing party seeks reimbursement for expert witness fees, a federal court is bound by the $30 per day limit of 28 U.S.C. §§ 1821 and 1920, absent a contract or explicit statutory authority to the contrary. 107 S.Ct. at 2496. Crawford does not apply to fees sought, as here, under 42 U.S.C. § 1988. The Court in Crawford noted that Congress had broadened attorney’s fee awards through its enactment of 42 U.S.C. § 1988, but had “not otherwise ‘retracted, repealed, or modified the limitations on taxable fees contained in [Sections 1821 and 1920].” Crawford, 107 S.Ct. at 2499. (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). I interpret this to mean that, as to § 1988, the limitations of § 1821 were repealed. Justice Blackmun’s concurrence further supports this view. He stated: I join the Court’s opinion and its judgment but upon the understanding that it does not reach the question whether, under 42 U.S.C. Section 1988, a district court may award fees for an expert witness. 107 S.Ct. at 2499. While the third circuit has not specifically addressed the issue, most courts considering the issue have agreed that the legislative history of § 1988 shows that the statute was intended to permit reasonable costs, regardless of the limits of §§ 1821 or 1920. See e.g. Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d 201, 205 (3d Cir.1981) (reviews civil rights cases where expert witness fees were awarded “in part on the ground that the award helped effectuate Congress’ intent to encourage initiation of civil rights actions.”); Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir.1983) (“Given the policy considerations underlying section 1988 and the legislative history, we agree with the other circuits that reimbursement of reasonable and necessary attorneys’ expenses such" } ]

[ { "docid": "12559484", "title": "", "text": "and contentious intervention, it is surprising that the plaintiff-in-tervenors never named it as a defendant, an act which ultimately would have resulted in fee liability. . Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.1989) (Title VII expert witness fee cap of $30 per day); Gilbert v. City of Little Rock, 867 F.2d 1062 (8th Cir.1989) (en banc decision affirming, by equally divided vote, lower court decision capping witness fees under § 1988 at $30 per day), cert. denied, — U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989); West Virginia Univ. Hosps. v. Casey, 885 F.2d 11, 34 (3d Cir.1989) (section 1988 witness fee cap $30 per day), cert. denied, — U.S. -, 110 S.Ct. 3213, 110 L.Ed.2d 661 (1990); Sevigny v. Dicksey, 846 F.2d 953, 959 (4th Cir.1988) (\"§ 1988 does not provide statutory authority for the awarding of compensation for non-legal experts”); Noble v. Herrington, 732 F.Supp. 114, 119 (D.D.C.1989) (Title VII cap of $30 per day). . The Friedrich court ruled that, in enacting section 1988, Congress intended to restore courts’ equitable power to shift litigation expenses in the aftermath of a contrary ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The Friedrich court reasoned further that, given the long-held understanding that fee-shifting pursuant to equitable powers does not come within the ambit of statutory caps, Congress' enactment of section 1988 placed civil rights fees outside the reach of those limits as well. Friedrich, 888 F.2d at 518. This holding is limited to section 1988, however its extension to Title VII is plausible, given the identical language and similar legislative purpose of section 2000e-5(k). . SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.1988) provides further support for the general proposition that witness fees in civil rights cases are beyond the reach of section 1821. In SapaNajin, the plaintiff prevailed on a First Amendment claim and sought expert witness fees as an expense under section 1988. In answer to the defendant's contention that Crawford capped such fees, the court explained that, since the fees" }, { "docid": "23440743", "title": "", "text": "including the fees for services of paralegals and law clerks. Their fees, however, are not regulated by statute as are witness fees. In fact, Missouri, against whom the fees were taxed, conceded “that compensation for the cost of these personnel should be included in the fee award.” Id. at -, 109 S.Ct. at 2469. Missouri’s argument was that section 1988 did not authorize billing paralegals at market rates, but only at their cost to the attorneys hiring them; charging market rates produced a windfall for the attorney. We acknowledge that in this age of sophisticated litigation, in which expert witnesses play an increasingly important role, thirty dollars per day is an insignificant sum. However, we believe that we are constrained by the language of Crawford to abandon our previous rule and to limit expert witness fees to thirty dollars a day. Congress has chosen to legislate in this area and unless the statute under which expert witness fees are awarded expressly repeals the limits of sections 1920 and 1821(b), we must defer to legislative fiat. In so holding, we join with the other circuits interpreting Crawford Fitting that have arrived at the same conclusion with respect to fee-shifting statutes similar to section 1988. Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.1989) (holding in a Title VII sex discrimination case that absent some reasonably explicit indication of Congressional intent that witness fees be shifted without regard to the thirty dollars per day cap, the Crawford rule must prevail). See Glenn v. General Mo tors Corp., 841 F.2d 1567, 1575 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988) (holding section 1821 applicable to fee-shifting provision of Equal Pay Act because “the broad language in Crawford Fitting does not permit a distinction based upon whether or not the award is made under a fee-shifting statute”); Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988) (holding section 1821 applicable to fee-shifting provision of Voting Rights Act); cf. Gilbert v. City of Little" }, { "docid": "12559485", "title": "", "text": "courts’ equitable power to shift litigation expenses in the aftermath of a contrary ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The Friedrich court reasoned further that, given the long-held understanding that fee-shifting pursuant to equitable powers does not come within the ambit of statutory caps, Congress' enactment of section 1988 placed civil rights fees outside the reach of those limits as well. Friedrich, 888 F.2d at 518. This holding is limited to section 1988, however its extension to Title VII is plausible, given the identical language and similar legislative purpose of section 2000e-5(k). . SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.1988) provides further support for the general proposition that witness fees in civil rights cases are beyond the reach of section 1821. In SapaNajin, the plaintiff prevailed on a First Amendment claim and sought expert witness fees as an expense under section 1988. In answer to the defendant's contention that Crawford capped such fees, the court explained that, since the fees were not awarded as a taxation of costs under 28 U.S.C. § 1821, but rather as an expense under section 1988, the $30 per day limit was inapplicable. But see Gilbert v. City of Little Rock, 867 F.2d 1062 (8th Cir.1989) (en banc decision affirming, by equally divided vote, lower court decision capping witness fees under § 1988 at $30 per day), cert. denied, - U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). . The City also argued that plaintiff-inter-venors failed to segregate allowable costs from disallowed ones. However, given that both expert witness costs and other costs have been allowed, no segregation was needed and this argument fails." }, { "docid": "7590636", "title": "", "text": "per day); cf. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1550 (10th Cir.1987) (Section 216(b) may permit expert witness fees as part of attorney fees, but parties stipulated to amount of attorney fees and court would not address issue; court implicitly held that expert witness fees could not be part of costs awarded). . Post-Crawford Fitting cases examining the issue pursuant to Section 1988 or other civil rights fee-shifting provisions have not permitted awards for expert witness fees. See Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (\"A prevailing party in a civil rights case is not entitled to tax [expert witness] fees as costs.” (citing Crawford Fitting))’, Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir.1987) (\"Although [Crawford Fitting ] expressly considered whether [Rule] 54(d) could, in an antitrust case, override the statutory limit on witness fees, the Court’s general reasoning leaves us no room to construe the Voting Rights Act provision here otherwise. The Voting Rights Act does not specifically allow recovery of expert witness fees, and we must reverse this portion of the district court's award.” (citation omitted)); ECOS, Inc. v. Brinegar, 671 F.Supp. 381, 404 n. 12 (M.D.N.C.1987) (Crawford Fitting persuasive authority for holding that |30 per day limit governs § 1988 award for expert witness fees); Alberti v. Sheriff of Harris County, (S.D.Tex. Aug. 26,1987) (same). See also Catlett v. Missouri Highway & Transportation Commission, 828 F.2d 1260, 1272 (8th Cir.1987) (in light of Crawford Fitting, defendant in Section 1983/Title VII case \"will be free [on remand] to challenge the assessment against it of the class' expert witness fees). Cf. Mennor v. Fort Hood National Bank, 829 F.2d 553, 557 (5th Cir.1987) (in Title VII case, district court could award attorney’s out-of-pocket costs because 28 U.S.C.A. § 1920 does not regulate those costs). But see United States v. Yonkers Board of Education, 118 F.R.D. 326,330 (S.D.N.Y.1987) [Crawford Fitting does not preclude award of expert witness fees). But cf. Jones v. City of Chicago, 1987 Westlaw 19800, at 8-9 (N.D.Ill. Nov. 10, 1987) (“[A]l-though the costs defendants object to are" }, { "docid": "13400022", "title": "", "text": "reimbursement for all reasonable out-of-pocket expenses incurred by prevailing counsel which normally are charged separately to fee-paying clients and which are not incorporated as part of office overhead into the attorneys’ billing rates. See Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir.1987) (§ 1988 fees include recovery of photocopying, travel and telephone costs, as distinct from “nonrecoverable routine office overhead”); Mennor v. Fort Hood National Bank, 829 F.2d 553, 556-57 (5th Cir.1987) (allowing recovery for postage, long-distance telephone calls and travel in Title VII case); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C.Cir.1984); Henry v. Weber- meier, 738 F.2d 188, 192 (7th Cir.1984); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). The question of expert witness fees has always divided the courts of appeals, however, with some courts holding that these expenses are recoverable as part of the attorneys’ fees, see Heiar v. Crawford County, 746 F.2d 1190, 1203-04 (7th Cir.1984); and others holding that § 1988 does not authorize compensation for “nonlegal experts.” Davis v. Richmond, Fredericksburg and Potomac R.R., 803 F.2d 1322, 1328 (4th Cir.1986). In Northcross, the Sixth Circuit ruled that, “The authority granted in section 1988 to award a ‘reasonable attorney’s fee’ included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expense, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988.” 611 F.2d at 639. In contrast, “docket fees, investigation expenses, deposition expenses, witness expenses and the costs of charts and maps” are recoverable, “in the court’s discretion as costs, pursuant to 28 U.S.C. § 1920.” Id. at 639, 642. In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed. 2d 385 (1988), the Supreme Court held that, “absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.” Although the Crawford Court" }, { "docid": "12559468", "title": "", "text": "full costs of litigation.” Thornberry, 676 F.2d at 1245. In Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.1989), petition for cert. filed (Jan. 29, 1990) (No. 89-1230), the court ruled that Crawford’s limit on witness fees only applied to time spent by a witness in court. The court noted that non-testimonial time spent by experts, in particular time spent educating counsel, was analogous to paralegal time which was found to be com-pensable in Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The court reasoned that “[t]o forbid the shifting of the expert’s fee would encourage underspecialization and inefficient trial preparation, just as to forbid shifting the cost of paralegals would encourage lawyers to do paralegals’ work.” Friedrich, 888 F.2d at 514. Accordingly, the court held that, regardless of the compensability of time spent on the stand by an expert, time spent in educating an attorney was essentially part of the attorney’s work product and was thus compensable as part of reasonable fees. Id.; accord, Denny v. Westfield State College, 880 F.2d 1465, 1474 (1st Cir.1989) (Breyer, J., concurring) (expert’s fee in Title VII case may involve far more than simply appearing in court and could be work that falls within the scope of a reasonable attorneys’ fee). Moreover, the court noted that time spent preparing to testify may also serve to educate counsel and thus may be compensa-ble on that basis. In the present case, the expert witness fees for which compensation is sought are perhaps better denominated consulting fees. Both of the relevant experts used by the fee applicants submitted affidavits; neither testified in court, though the City did depose Mr. Bailer. Since no fees are sought for actual in-court attendance, the limit of section 1821 of “$30 per day for each day’s attendance” is inapplicable and reasonable fees are awardable. Moreover, although this court need not reach the issue of the effect of Crawford on fee awards for in-eourt expert witnesses in Title VII cases, several courts have rejected its extension. Friedrich, 888 F.2d at 518 (Congress intended that section 1821" }, { "docid": "21543337", "title": "", "text": "Dicksey, 846 F.2d 953, 959 (4th Cir.1988) (“§ 1988 does not provide statutory authority for the awarding of compensation for non-legal experts”); Glenn, 841 F.2d at 1574 (Equal Pay Act, 29 U.S.C. § 216(b), does not allow award of expert witness fees); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (prevailing party in civil rights suit “not entitled to tax [expert witness] fees as costs”), cert. denied, — U.S. -, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988); Leroy, 831 F.2d at 584 (Voting Rights Act does not sanction shifting of expert witness fees); Knop v. Johnson, 712 F.Supp. 571 (W.D.Mich.1989) (available on WESTLAW) (Crawford prohibits reimbursement of expert witness fees under section 1988 above $30-per-day cap); cf. Missouri v. Jenkins, — U.S. -, -, 109 S.Ct. 2463, 2474-76, 105 L.Ed.2d 229 (1989) (Rehnquist, C.J., dissenting) (“reasonable attorney’s fee” as used in section 1988 “means a fee charged for services rendered by an individual who has been licensed to practice law” — nothing more; and under Crawford, list of reimbursable expenses delineated in 28 U.S.C. § 1920 “is exclusive”). While we take no view of the propriety of awarding expert witness fees under any statute other than 42 U.S.C. § 2000e-5(k), we think these authorities important as illustrating widespread judicial recognition that, in the albedo of Crawford, courts must subject proffered statutory language and legislative history to fairly rigorous scrutiny. Failing the discovery of some tangible, reasonably explicit indication of congressional intent that witness fees be shifted without regard to the $30-per-day cap, the Crawford rule must prevail. That is especially true in light of the many statutes that, unlike this one, effectively trump the section 1821 limitation by unambiguously authorizing taxation of witness fees. See Int’l Woodworkers, 790 F.2d at 1179 n. 7 (listing 28 laws in which Congress saw fit expressly to include expert witness fees as taxable costs in civil actions); Note, Expert Witness Fees as Taxable Costs in Federal Courts—The Exceptions and the Rule, 55 U.Cin.L.Rev. 1207, 1217 n. 63 (1987) (similar). These fee-shifting provisions occur frequently in contexts such as energy and environmental law, where" }, { "docid": "14117017", "title": "", "text": "the attention of the district court, we believe that our review is proper. . The witness attendance fee provided for in 28 U.S.C. § 1821(b) was increased from $30 per day to $40 per day in 1990. See Civil Justice Reform Act of 1990, Pub.L. No. 101-650, § 314(a), 104 Stat. 5089, 5115. . When Ramos was decided, § 1988 provided that \"the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.” Section 1988 was amended in 1991 to expressly provide for the inclusion of \"expert fees as part of the attorney's fee.” See Civil Rights Act of 1991, Pub.L. No. 102-166, § 113, 105 Stat. 1071, 1079 (codified at 42 U.S.C. § 1988(c)). . Several Circuits interpreted Crawford Fittings broad mandate as prohibiting the recovery of expert witness fees under attorney fee shifting statutes. See West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 34 (3d Cir.1989), aff’d, - U.S.-, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991); Denny v. Westfield State College, 880 F.2d 1465, 1469 (1st Cir.1989); Glenn v. General Motors Corp., 841 F.2d 1567, 1574-75 (11th Cir.), cert, denied, 488 U.S. 948, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988); Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir.1987), cert, denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988). But see Friedrich v. City of Chicago, 888 F.2d 511, 519 (7th Cir.1989) (Crawford Fitting does not limit award of expert witness fees under § 1988), vacated, — U.S.-, 111 S.Ct. 1383, 113 L.Ed.2d 440 (1991); Sapanajin v. Gunter, 857 F.2d 463, 465 (8th Cir.1988) (same). We subsequently relied on Crawford Fitting and refused to extend Ramos' reasoning to allow for the recovery of expert witness fees under § 4 of the Clayton Act, 15 U.S.C. § 15 which provides for the recover of \"the cost of the suit, including a reasonable attorney's fee.” Reazin v. Blue Cross & Blue Shield, 899 F.2d 951, 981-82 (10th Cir.), cert, denied, — U.S.-, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990). . In finding that expert witness" }, { "docid": "12559469", "title": "", "text": "College, 880 F.2d 1465, 1474 (1st Cir.1989) (Breyer, J., concurring) (expert’s fee in Title VII case may involve far more than simply appearing in court and could be work that falls within the scope of a reasonable attorneys’ fee). Moreover, the court noted that time spent preparing to testify may also serve to educate counsel and thus may be compensa-ble on that basis. In the present case, the expert witness fees for which compensation is sought are perhaps better denominated consulting fees. Both of the relevant experts used by the fee applicants submitted affidavits; neither testified in court, though the City did depose Mr. Bailer. Since no fees are sought for actual in-court attendance, the limit of section 1821 of “$30 per day for each day’s attendance” is inapplicable and reasonable fees are awardable. Moreover, although this court need not reach the issue of the effect of Crawford on fee awards for in-eourt expert witnesses in Title VII cases, several courts have rejected its extension. Friedrich, 888 F.2d at 518 (Congress intended that section 1821 cap does not apply to section 1988-based fees); Williams v. City of New York, 728 F.Supp. 1067, 1071-72 (S.D.N.Y.1990) ($30 per day limit inapplicable to section 1988 cases); Maturo v. National Graphics, Inc., 722 F.Supp. 916, 932-33 (D.Conn.1989) (Crawford’s limit on witness fees not applicable where fees awarded under fee-shifting statute); Black Grievance Comm. v. Philadelphia Elec. Co., 690 F.Supp. 1393, 1403 (E.D.Pa.1988) (interpreting Crawford to mean that, as to section 1988, the $30 per day limitation is repealed); cf. Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 557 (5th Cir.1987) (42 U.S.C. § 2000e-5(k) does not overrule limit on statutory costs but includes reasonable out-of-pocket expenses normally charged to fee-paying clients). The City’s contrary authority, Seven Gables Corp. v. Sterling Recreation Org., 686 F.Supp. 1418, 1421 (W.D.Wash.1988), is un persuasive, as it involved interpretation of the Clayton Act, 15 U.S.C. § 15(a) and thus did not take into account the legislative purposes of Title VII and section 1988. In light of the foregoing authorities and the policy of encouraging litigation of Title VII" }, { "docid": "12559470", "title": "", "text": "cap does not apply to section 1988-based fees); Williams v. City of New York, 728 F.Supp. 1067, 1071-72 (S.D.N.Y.1990) ($30 per day limit inapplicable to section 1988 cases); Maturo v. National Graphics, Inc., 722 F.Supp. 916, 932-33 (D.Conn.1989) (Crawford’s limit on witness fees not applicable where fees awarded under fee-shifting statute); Black Grievance Comm. v. Philadelphia Elec. Co., 690 F.Supp. 1393, 1403 (E.D.Pa.1988) (interpreting Crawford to mean that, as to section 1988, the $30 per day limitation is repealed); cf. Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 557 (5th Cir.1987) (42 U.S.C. § 2000e-5(k) does not overrule limit on statutory costs but includes reasonable out-of-pocket expenses normally charged to fee-paying clients). The City’s contrary authority, Seven Gables Corp. v. Sterling Recreation Org., 686 F.Supp. 1418, 1421 (W.D.Wash.1988), is un persuasive, as it involved interpretation of the Clayton Act, 15 U.S.C. § 15(a) and thus did not take into account the legislative purposes of Title VII and section 1988. In light of the foregoing authorities and the policy of encouraging litigation of Title VII suits through adequate compensation, the court finds that reasonable witness fees, at least for activities other than court attendance, if not more, are available as a component of attorneys' fees under Title VII and section 1988. Nevertheless, there is some limit on those fees. Under Ninth Circuit precedent, where witness fees are taxed under Rule 54(b), they are available only upon a finding that the expert testimony was crucial or indispensable in establishing the prevailing party’s case. United States v. City of Twin Falls, 806 F.2d 862, 878 (9th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987). Although the witness fees in the case at bar are sought as a part of reasonable attorneys’ fees under Title VII, not under Rule 54(b), the court adheres to the “indispensability” standard and limits the award to solely Mr. Bailer’s fees. Mr. Bailer’s testimony provided critical support for the plaintiffs’ position on the need for a multiplier to attract competent counsel. The court accorded Mr. Bailer’s testimony considerable weight, given that the bulk" }, { "docid": "21543330", "title": "", "text": "provides sufficient support for plaintiffs’ proposition. When measured against the framework constructed by the Supreme Court in Crawford, Title VII cannot be read to override the express statutory curbs on witness fees. Accord Mennor v. Fort Hood National Bank, 829 F.2d 553, 557 (5th Cir.1987) (“The general language in a statute such as 42 U.S.C. § 2000e-5(k) may not be interpreted to authorize what is disallowed by the specific language of 28 U.S.C. § 1920.”) (footnotes omitted); Int’l Woodworkers of America v. Champion Int’l Corp., 790 F.2d 1174, 1181 (5th Cir.1986) (Title VII “provide[s] for the award of attorneys’ fees to prevailing parties, but make[s] no mention of excess expert witness’ fees”), aff'd, 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (companion case to Crawford); Noble v. Herrington, Civ. No. 85-1507 (D.D.C. Feb. 14, 1989) (available on Westlaw, 1989 WL 15852) (relying on Crawford in limiting award of witness fees under Title VII); cf. Catlett v. Missouri Highway and Transportation Commission, 828 F.2d 1260, 1272 (8th Cir.1987) (in light of intervening Crawford opinion, defendant should be allowed “to challenge the [earlier] assessment against it of the [plaintiff] class’ expert witness fees”), cert. denied, — U.S. -, 108 S.Ct. 1574, 99 L.Ed.2d 889 (1988). IV Appellants say that they recognize these realities, but nevertheless offer a salma-gundi of reasons why the Crawford rule should not be extended to this case. These related contentions coalesce into a single focus: citing cases decided under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, appellants assert that the district court should have read the phrase “a reasonable attorney’s fee” (contained in 42 U.S.C. § 2000e-5(k)) to encompass expert witness fees. See SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.1988); Black Grievance Committee v. Phila. Electric Co., 690 F.Supp. 1393, 1403 (E.D.Pa.1988); United States v. Yonkers Bd. of Educ., 118 F.R.D. 326, 330 (S.D.N.Y.1987); see also Mathis v. Spears, 857 F.2d 749, 758-59 (Fed.Cir.1988) (35 U.S.C. § 285, which authorizes award of reasonable attorneys’ fees “in exceptional cases,” permits shifting of expert witnesses’ charges upon finding of bad" }, { "docid": "21543350", "title": "", "text": "their merits. For starters, the Court has recently indicated that the statutory phrase “a reasonable attorney’s fee” is not infinitely elastic. As Justice Brennan has written: ”[T]he the term must refer to a reasonable fee for the work product of an attorney \" including the work of “others whose labor contributes to the work product for which an attorney bills her client_” Jenkins, - U.S. at -, 109 S.Ct. at 2470 (emphasis supplied). BREYER, Circuit Judge (concurring). The witness fee limitation contained in 28 U.S.C. § 1821 says that a “witness shall be paid an attendance fee of $30 per day for each day’s attendance” (along with certain related transportation costs) (emphasis added). Given the Supreme Court’s holding in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), I agree that the plaintiffs in this case cannot obtain more than $30 per day for the attendance at trial of an expert witness. The plaintiffs in this case, however, have not asked for recovery of money that attorneys might reasonably have spent paying experts for non-attendance activities. Experts’ activities may involve far more than simply appearing in court; they could include helping prepare the case, and could be work that, like that of, say, a private investigator, might fall within the scope of “a reasonable attorney’s fee.” See, e.g., § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k) (authorizing award of “a reasonable attorney’s fee”); 42 U.S.C. § 1988 (same); SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.1988) (finding expenses for expert’s non-attendance activity award-able under § 1988 in excess of § 1821 cap); Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 102-03 (1st Cir.1988) (similar); In re Air Crash Disaster at John F. Kennedy Int’l Airport on June 24 1975, 687 F.2d 626, 631 (2d Cir.1982) (awarding expenses for expert’s non-attendance activity under 28 U.S.C. § 1920(4)). See also Independent Federation of Flight Attendants v. Zipes, — U.S. -, - n. 2, 109 S.Ct. 2732, 2735 n. 2, 105 L.Ed.2d 639 (1989) (the identical fee-shifting phrases in Title VII § 706(k)" }, { "docid": "12559465", "title": "", "text": "The City maintains that this court must observe a cap of $30 per day on expert witness fees pursuant to Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 2499, 96 L.Ed.2d 385 (1987). The Crawford Court addressed the issue of the district courts’ discretion to levy costs under Federal Rule of Civil Procedure 54(b) and held that: “absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.” Id. Section 1920(3) sets out witness fees as taxable costs and section 1821(b) limits witness fees to a $30 per day. Both the concurring and dissenting opinions in Crawford highlighted the fact that the Court did not have before it the issue of whether a court may award expert witness fees separately, under 42 U.S.C. § 1988. Nevertheless, a number of courts have extended the case to bar excess awards in civil rights and Title VII cases. The City invites this court to follow them, citing Pacific West Cable Co. v. City of Sacramento, 693 F.Supp. 865, 876 (E.D.Cal.1988) for its argument that Ninth Circuit authority for expert witness fee awards is founded on Rule 54(b) and is thus discredited by Crawford. In dicta, the Pacific West court considered and rejected the propriety of an award of witness fees in excess of the statutory limit after Crawford. The court noted that the Ninth Circuit approach on fees and costs in Title VII cases is to evaluate attorneys’ fees and certain costs under 42 U.S.C. § 2000e-5(k), but to evaluate witness fees separately under Rule 54(b) and related statutes. Pacific West Cable, 693 F.Supp. at 876 (citing Thornberry v. Delta Air Lines, 676 F.2d 1240, 1245 (9th Cir.1982), vacated on other grounds, 461 U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983)). Since Crawford curtailed the award of excess witness fees under Rule 54(b), the court reasoned: “unless the Ninth Circuit, when squarely presented with the issue, finds the authority for recovery" }, { "docid": "13400021", "title": "", "text": "participation in this litigation. Third, a multiplier is justified because of the inherent difficulty of litigating this case, given counsels’ limited access to their clients and the difficulties associated with the simultaneously litigating conditions in four separate, remote institutions. Fourth, plaintiffs’ counsel achieved exceptional success for their clients. In recognition of these factors, therefore, I have determined that a multiplier of 30% (1.3) should be applied to the basic fee award. D. Costs and Expenses Plaintiffs request reimbursement for expert witness fees in the amount of $97,530.61. Defendants object that, under the Supreme Court’s recent decision in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1988), plaintiffs are entitled only to the statutory witness fees provided by 28 U.S. C. § 1821(b). Plaintiffs respond that the use of experts was essential to their success on the merits of this action and that expenses for these witnesses should be allowed as part of the reasonable attorneys fee. Section 1988 has been construed, as a general rule, to allow reimbursement for all reasonable out-of-pocket expenses incurred by prevailing counsel which normally are charged separately to fee-paying clients and which are not incorporated as part of office overhead into the attorneys’ billing rates. See Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir.1987) (§ 1988 fees include recovery of photocopying, travel and telephone costs, as distinct from “nonrecoverable routine office overhead”); Mennor v. Fort Hood National Bank, 829 F.2d 553, 556-57 (5th Cir.1987) (allowing recovery for postage, long-distance telephone calls and travel in Title VII case); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C.Cir.1984); Henry v. Weber- meier, 738 F.2d 188, 192 (7th Cir.1984); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). The question of expert witness fees has always divided the courts of appeals, however, with some courts holding that these expenses are recoverable as part of the attorneys’ fees, see Heiar v. Crawford County, 746 F.2d 1190, 1203-04 (7th Cir.1984); and others holding that § 1988 does not authorize compensation for “nonlegal experts.” Davis v. Richmond, Fredericksburg and Potomac R.R.," }, { "docid": "12573260", "title": "", "text": "explicit Supreme Court or Second Circuit authority on the extent to which Crawford applies to cases involving fee-shifting statutes, and courts in other circuits have been divided on this issue. See, e.g., Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.1989); West Va. Univ. Hosp. v. Casey, 885 F.2d 11 (3d Cir.1989), cert. granted, — U.S. -, 110 S.Ct. 1294, 108 L.Ed.2d 472 (1990); Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.1989); SapaNajin v. Gunter, 857 F.2d 463 (8th Cir.1988). However, in a decision which was affirmed without opinion by the Second Circuit, the court in Hillburn v. Comm’r, Conn. Dep’t of Income Maint., 683 F.Supp. 23 (D.Conn.1987), aff'd, 847 F.2d 835 (2d Cir.1988), stated that it read Crawford as applying only to awards under §§ 1821 and 1920 and Fed.R.Civ.P. 54(d). The court held that Crawford did not reach the question of awards under the 42 U.S.C. § 1988, and therefore granted an award for the fees of an expert witness used in connection with a fee application. Similarly, the court in United States v. Yonkers Bd. of Educ., 118 F.R.D. 326 (S.D.N.Y.1987), declined to apply Crawford to an attorney’s fee case decided under § 1988, stating that “[i]n light of past practice, the congressional policy of encouraging the assertion of legal rights in civil rights matters ... and the adverse impact which a $30 a day limitation on expert witness reimbursement would have on such litigation, we decline to impose such a ceiling.” Id. at 330. I find the reasoning of Hillburn and Yonkers to be persuasive. Although both cases involved the Civil Rights Act, the logic behind those decisions also applies to ERISA, which, like the Civil Rights Act, is a remedial statute, enforcement of which is encouraged by Congress. Furthermore, in light of the Court of Appeals’ affirmance of Hillburn, and in the absence of any explicit authority from that court to the contrary, I conclude that plaintiffs here are not bound by the $30 per day limit applied in Crawford. Brass argues that the expert witness fee is not compensable because plaintiffs" }, { "docid": "12573259", "title": "", "text": "attorneys’ fees. At that time, Pottle was no longer acting as attorney, but as a witness. For both he and Mitchell Williams to receive fees for this time would be duplicative and, therefore, unreasonable. The fee application itself was not of such a nature that it required Williams, his associate and Pottle to effectively litigate the matter. The issue concerning the $2,000.00 expert witness fee, is whether the fee is properly compensable in light of the Supreme Court’s decision in Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), which held that “absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920,” which provide respectively that “[a] judge ... may tax as costs” certain items, including witness fees, and that a “witness shall be paid an attendance fee of $30.00 per day for each day’s attendance.” There is as yet no explicit Supreme Court or Second Circuit authority on the extent to which Crawford applies to cases involving fee-shifting statutes, and courts in other circuits have been divided on this issue. See, e.g., Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.1989); West Va. Univ. Hosp. v. Casey, 885 F.2d 11 (3d Cir.1989), cert. granted, — U.S. -, 110 S.Ct. 1294, 108 L.Ed.2d 472 (1990); Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.1989); SapaNajin v. Gunter, 857 F.2d 463 (8th Cir.1988). However, in a decision which was affirmed without opinion by the Second Circuit, the court in Hillburn v. Comm’r, Conn. Dep’t of Income Maint., 683 F.Supp. 23 (D.Conn.1987), aff'd, 847 F.2d 835 (2d Cir.1988), stated that it read Crawford as applying only to awards under §§ 1821 and 1920 and Fed.R.Civ.P. 54(d). The court held that Crawford did not reach the question of awards under the 42 U.S.C. § 1988, and therefore granted an award for the fees of an expert witness used in connection with a fee application. Similarly, the court" }, { "docid": "21543329", "title": "", "text": "2000e-5(k). On its face, this provision falls well short of the Crawford benchmark. Its text applies to attorneys’ fees without purporting to reach witness fees. As to the latter, any purported authorization is certainly not “explicit.” Crawford, 107 S.Ct. at 2499. Moreover, the fact that section 2000e-5(k) constitutes “a reasonable attorney’s fee as part of the costs” strongly suggests that remaining cost items (which, unlike counsel fees, are covered in 28 U.S.C. §§ 1821 and 1920) are unaffected. Upon searching for guidance behind the plain language of the act, we find no real indication of any supersessive intent. To the contrary, the legislative history of Title VII appears singularly unhelpful to appellants. The one pertinent sentence in the parliamentary annals states that the section on attorneys’ fees “should make it easier for a plaintiff of limited means to bring a meritorious suit.” 110 Cong.Rec. 12,724 (June 4, 1964) (remarks of Senator Humphrey). The history of section 2000e-5(k) says nothing at all about witness fees or taxable costs. In short, neither statutory text nor legislative history provides sufficient support for plaintiffs’ proposition. When measured against the framework constructed by the Supreme Court in Crawford, Title VII cannot be read to override the express statutory curbs on witness fees. Accord Mennor v. Fort Hood National Bank, 829 F.2d 553, 557 (5th Cir.1987) (“The general language in a statute such as 42 U.S.C. § 2000e-5(k) may not be interpreted to authorize what is disallowed by the specific language of 28 U.S.C. § 1920.”) (footnotes omitted); Int’l Woodworkers of America v. Champion Int’l Corp., 790 F.2d 1174, 1181 (5th Cir.1986) (Title VII “provide[s] for the award of attorneys’ fees to prevailing parties, but make[s] no mention of excess expert witness’ fees”), aff'd, 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (companion case to Crawford); Noble v. Herrington, Civ. No. 85-1507 (D.D.C. Feb. 14, 1989) (available on Westlaw, 1989 WL 15852) (relying on Crawford in limiting award of witness fees under Title VII); cf. Catlett v. Missouri Highway and Transportation Commission, 828 F.2d 1260, 1272 (8th Cir.1987) (in light of intervening Crawford opinion," }, { "docid": "23064944", "title": "", "text": "the prevailing view that ‘costs of suit’ under § 4 [15 U.S.C. § 15] does not include expert expenses except in cases of exceptional circumstances”), cert. denied, 484 U.S. 823, 108 S.Ct. 86, 98 L.Ed.2d 48 (1987); Illinois v. Sangamo Constr. Co., 657 F.2d 855, 866 (7th Cir. 1981) (“recovery of specific expenses pursuant to Section 4 of the Clayton Act [15 U.S.C. § 15] is governed by the recovery of costs under Rule 54(d) and 28 U.S.C. § 1920”); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 309 n. 75 (2d Cir.1979) (“the only costs recoverable by a successful plaintiff in a private antitrust action suit are those nor mally allowable under 28 U.S.C. § 1920 and Fed.R.Civ.P. 54(d).”), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); Ott v. Speedwriting Publishing Co., 518 F.2d 1143, 1149 (6th Cir.1975) (“the fees of expert witnesses are not included in the recoverable costs in an antitrust action”); Seven Gables Corp. v. Sterling Recreation Org., 686 F.Supp. 1418, 1421 (W.D.Wash. 1988) (“The court does not interpret the provision of the Clayton Act providing for recovery of attorney’s fees as explicit statutory authorization for compensating plaintiffs for fees paid to experts beyond that authorized by the cost statutes”); Arthur S. Langenderfer, Inc. v. S.E. Johnson, Co., 684 F.Supp. 953, 960 (N.D.Ohio 1988) (“The costs recoverable under Section 4 of the Clayton Act are limited to those costs recoverable under Fed.R.Civ.P. 54(b) and 28 U.S.C. § 1920”); Int’l Wood Processors v. Power Dry, Inc., 598 F.Supp. 299 (D.S.C. 1984), aff'd, 792 F.2d 416 (4th Cir.1986); Beech Cinema, Inc. v. Twentieth Century Fox Film Corp., 480 F.Supp. 1195, 1198 (S.D.N.Y.1979), aff'd, 622 F.2d 1106 (2d Cir. 1980); see also Int’l Woodworkers v. Champion Int’l Corp., 790 F.2d 1174, 1180 (5th Cir.1986) (“a statute which provides only for an award of ‘costs’ or ‘attorneys’ fees’ but which fails to address expert witness’ fees will not be construed to authorize the taxing of expert witness fees in excess of the § 1821 amount”), aff'd sub nom Crawford Fitting Co. v. J. T." }, { "docid": "7590637", "title": "", "text": "we must reverse this portion of the district court's award.” (citation omitted)); ECOS, Inc. v. Brinegar, 671 F.Supp. 381, 404 n. 12 (M.D.N.C.1987) (Crawford Fitting persuasive authority for holding that |30 per day limit governs § 1988 award for expert witness fees); Alberti v. Sheriff of Harris County, (S.D.Tex. Aug. 26,1987) (same). See also Catlett v. Missouri Highway & Transportation Commission, 828 F.2d 1260, 1272 (8th Cir.1987) (in light of Crawford Fitting, defendant in Section 1983/Title VII case \"will be free [on remand] to challenge the assessment against it of the class' expert witness fees). Cf. Mennor v. Fort Hood National Bank, 829 F.2d 553, 557 (5th Cir.1987) (in Title VII case, district court could award attorney’s out-of-pocket costs because 28 U.S.C.A. § 1920 does not regulate those costs). But see United States v. Yonkers Board of Education, 118 F.R.D. 326,330 (S.D.N.Y.1987) [Crawford Fitting does not preclude award of expert witness fees). But cf. Jones v. City of Chicago, 1987 Westlaw 19800, at 8-9 (N.D.Ill. Nov. 10, 1987) (“[A]l-though the costs defendants object to are in large part no longer allowable under Section 1920, they are allowable as part of the reasonable attorney’s fees obtainable by the plaintiff under Section 1988 [for out-of-pocket expenses incurred by the attorney in preparation of trial].\"). We recognize that, in contrast to the language of Section 1988 and 42 U.S.C.A. § 2000e-5(k) (Title VII’s fee-shifting provision), the language of Section 216(b) is mandatory, favors plaintiffs only, and separates attorney fees from costs. In light of Crawford Fitting’s broad language and the absence in Section 216(b)’s legislative history of congressional intent to compensate plaintiffs fully for expert witness fees as part of the costs of the action, we attach no significance to the differences in statutory language." }, { "docid": "23440744", "title": "", "text": "In so holding, we join with the other circuits interpreting Crawford Fitting that have arrived at the same conclusion with respect to fee-shifting statutes similar to section 1988. Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.1989) (holding in a Title VII sex discrimination case that absent some reasonably explicit indication of Congressional intent that witness fees be shifted without regard to the thirty dollars per day cap, the Crawford rule must prevail). See Glenn v. General Mo tors Corp., 841 F.2d 1567, 1575 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988) (holding section 1821 applicable to fee-shifting provision of Equal Pay Act because “the broad language in Crawford Fitting does not permit a distinction based upon whether or not the award is made under a fee-shifting statute”); Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988) (holding section 1821 applicable to fee-shifting provision of Voting Rights Act); cf. Gilbert v. City of Little Rock, 867 F.2d 1062, 1062-63 (8th Cir.1989), petition for cert, filed (May 20, 1989) (en banc) (affirming by an equally divided court the order of the district court awarding expert witness fees as expenses under section 1988 at the statutory rate of thirty dollars a day); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988), (stating in dicta that under Crawford Fitting “[a] prevailing party in a civil rights case is not entitled to tax such fees as costs”); see also Central Delaware Branch of NAACP v. City of Dover, 123 F.R.D. 85, 94-95 (D.Del.1988) (awarding expert witness fees under section 1988 at statutory rate of thirty dollars a day). We thus conclude that, under Crawford Fitting, section 1988 as presently drafted does not authorize expert fee awards in excess of the statutory cap of thirty dollars per day provided in section 1821(b). We therefore vacate the district court’s judgment awarding attorneys fees insofar as it awards WVUH expert witness fees in excess" } ]

[ { "docid": "18200851", "title": "", "text": ". . Item 807.00, as amended by Public Laws 89-241 and 89-806, in effect in 1967 reads: Articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by any change in form, shape, or otherwise, and (e) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting_ A duty upon the full value of the imported ' article, less the cost or value of such products of the United States.. . The merchandise in issue is magnet wire and lead wire, both of which were on spools when exported from the United States to Taiwan. The magnet wire is used for making the horizontal or vertical coils in the imported yokes. The lead wire is us.ed for making the lead wire harness contained in the deflection yokes. The Customs Court briefly described the initial steps taken in Taiwan with the magnet and lead wire after its exportation from the United States in the following manner: In the first stage of operations abroad wire which is used -to make horizontal coils ... is despooled from the supply spool and formed into the primary shape of a horizontal coil by a winding machine. The coil is then removed from the winding machine and taped to prevent unraveling of its adjacent turns which at this point adhere to each other by means of the bonding material on its outer surface. After separation from the supply spool, the coil is cement dipped, dried, and precision shaped by machine pressing to fit the contours of a plastic liner on which it is subsequently mounted. Next, ferrite cores are inserted into the winding machine for the making of vertical coils. The machine is then actuated and wire ... is despooled from the supply spool and vertically wound around the ferrite cores for a prescribed number of turns." } ]

[ { "docid": "12403690", "title": "", "text": "enclosed, rectangular-shaped assemblies were subsequently placed in, and fastened to, sewn bags of vinyl to form light-weight luggage commonly known now by such terms as “soft-side” or “carry-on”. There is no dispute that Customs correctly classified the models covered by the entry in question under TSUS items 706.6235 and 807.00. Rather, the plaintiff seeks a deduction from the duty paid for the value of the steel strips as “fabricated components, the product of the United States” within the meaning of the latter item. It provides for a “duty upon the full value of the imported article, less the cost or value of ... products of the United States” which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity ... by change in form, shape, or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting. Upon denial of such a deduction, this action ensued. Discussion The foregoing three conditions for a deduction are set forth in the conjunctive, and it has been held that each must be satisfied before a component can qualify for duty-free treatment. E.g., The Proctor & Gamble Distributing Company v. United States, 11 CIT -, -, Slip Op. 87-72, at 3 (June 24, 1987). The first question then is whether the steel strips, which were admittedly fabricated in the United States, “were exported in condition ready for assembly without further fabrication”. In E. Dillingham, Inc. v. United States, 470 F.2d 629, 632, 60 C.C.P.A. 39 (1972), the court stated that the correct starting point for the application of item 807.00 must be the material or article in question, as exported from the United States. In that case, the court held that the mixed fiber mass at issue, as it left this country, required further labor to put it into the condition of a component ready for assembly, and thus disallowance of a deduction was upheld. In Zwicker Knitting Mills v. United States, 613 F.2d" }, { "docid": "18200853", "title": "", "text": "The coils are then separated from the supply spool, removed from the machine, and taped to prevent unraveling of the turns. In this manner two horizontal coils and two vertical coils are prepared for each yoke with the magnet wire. Then, an appropriate number of “lead wires” . . . are drawn from supply spools and mechanically cut to desired lengths. The ends of the lead wires are mechanically stripped of insulating material for electrical connection purposes. The lead wires are then brought together with a plug assembly, woven into a cable harness, and secured with tape. At this point we have a finished cable harness ready for cementing to a terminal panel. (Emphasis added). The .coils and harnesses produced are described as ‘‘second level sub-assemblies.” The Customs Court held that since “both versions of item 807.00 contemplate the exportation from the United States of ‘components’ of the imported article, as distinguished from mere- ‘products’. . . the fundamental question ... is whether the subject wire was a component of the yoke when exported from the United States.” The court found that since the wire products were sub-assembled when first used abroad, they could not be directly employed as components in the assembly of the imported yokes, without further fabrication. Therefore, the court found the holding of Amplifone Corporation v. United States, 65 Cust. Ct. 58, C.D. 4054 (1970) to be dispositive of the .importer’s claim and dismissed the importer’s protest. Opinion In the interim period since the Customs Court’s decision, this court •decided the case of General Instrument Corporation v. United States, 60 CCPA 178, C.A.D. 1106, 480 F. 2d 1402 (1973), familiarity with which is presumed, wherein we specifically rejected the rationale of the Amplifone case. Appellee, while acknowledging this court’s decision in General Instrument, asserts that the facts of the present case are distinguishable therefrom and that the rationale of E. Dillingham, Inc. v. United States, 60 CCPA 39, C.A.D. 1078, 470 F. 2d 629 (1972) should be applicable to the facts of-the instant case. Citing Dillingham, appellee contends that the involved wire was subject to “further" }, { "docid": "17371016", "title": "", "text": "Eici-i, Judge. This appeal is from tbe decision and judgment of the Third Division of the Customs Court, 67 Cust. Ct. 226, C.D. 4278 (1971), overruling a protest against the classification of papermakers’ felts imported from Canada in 1966. There is no dispute about the rate of duty. The sole question on appeal is the amount upon which duty should be assessed. Appellant maintains, pursuant to item 807.00, TSUS, that the merchandise is classifiable as an “assembly” of American components, and should have been assessed with duty upon the value of the imported articles less the cost of the components of United States origin. We affirm in part and reverse in part. What the Customs Court said on the question whether or not the two components of the felts, fiber and fabric, meet the requirements of item 807.00 was, in its entirety, as follows: At the time of exportation the massed fibers are not in a condition ready for assembly without further fabrication, and plaintiff’s witness MeEwan said as much (R. 26, 36). The fibers must be sorted, oiled, carded, and laid out in mats before they are ready for the assembly operation of being needled into the fabric. And these steps take place in the fpreign country. The fiber mat which was the product of the carding and not the individual fibers constitutes one of the components of the needled felt. The 'oiling and opening operations also go beyond the scope of being merely incidental operations. As for the fabric, while it is ready for the assembly operation in its condition as exported, it is completely obscured from view after the assembly operation is completed, as the result of impregnation of the fabric with the fiber mats. The components of the assembled felts cannot be separated without considerable damage. Consequently, the assembly operation results in a loss of physical identity, otherwise, with respect to the fabric, contrary to the requirements of item 807.00 Item 807.00 reads: Articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition" }, { "docid": "5331123", "title": "", "text": "of the challenged operation was minor, even though the operation as a whole was a significant process, and therefore not incidental to assembly. Id. General Motors, however, did not mandate combining all “non-joinder” functions with the coating operations when comparing expense and time costs against the cost of the affected components, and the duration of assembly, as defendant now urges. If this were the case, the Federal Circuit would have also grouped the other non-joinder processes including water testing, detail work, inspections, wheel alignment, and final drive tests with the coating operations in its Mast calculations. See id. at 717-18 (listing non-assembly operations). Surgikos also fails to support defendant’s position. Surgikos concerned the assembly of surgical sheets assembled in Mexico. Although the court in Surgikos did weigh the only two non-assembly operations — fenestration (creating a rectangular opening in the sheet) and finish folding (functional folding to maintain antiseptic conditions) — against the pure joinder operations, Customs had challenged both fenestration and finish folding as nonincidental to assembly; the joinder of the surgical sheets was the only remaining operation. 12 Ct. Int’l Trade 243-44. Customs, by challenging all non-assembly operations as not being incidental to assembly, necessarily mandated that the court compare all non-assembly operations against pure assembly. The issue of whether all nonassembly operations must be weighed against pure assembly, however, was not before the court. The court therefore does not read Surgikos as broadly as defendant urges. The court finds that the minor chopping, handling and trimming operations are not merely incidental to assembly, but are so integral to the process as to merge with it. (See Court’s Findings, Tr. at 511) (noting that such processes are related to assembly and may also be part of assembly); see also General Instrument Corp. v. United States, 499 F.2d 1318, 1319-21 (C.C.P.A. 1974) (finding spooling, shaping & machine pressing, cement coating, cutting, stripping, and weaving of magnet and lead wire exported from the United States to Taiwan where wire was wound into coils and cable harnesses as constituting assembly for purposes of item 807.00). These minor operations include placing a" }, { "docid": "23632144", "title": "", "text": "breaker strip, and a soft rubber cushion, was built up upon a shaped metal core corresponding to the cavity of the finished tire. As the core was revolved, the fabric followed its contour at and near the tread, but the portions of the band which were to constitute the side and bead portions of the tire being longer circumferentially, required a stitching down by means of wheels or disks so as to adhere smoothly to the sides of the core. Inextensible bead wires were applied in their final position and the edges of the fabric plies folded around them, like-wire by the use of suitable stitchers. The tire in substantially its ultimate form was then removed from the core, which could be collapsed for the purpose, and was ready for the final step of vulcanization. It is conceded that the core process produced extremely satisfactory and durable tires, but asserted that it required skilled operators, and was tedious and expensive. What Hopkinson claims to have contributed to the industry is a method of winding multiple plies of tire fabric upon a flat drum of a diameter corresponding to the bead or smallest diameter of the tire, applying the cushion, breaker strip, tread, and side walls to this fabric while still upon the dram, thereby producing a complete fire structure in flat “pulley band” form, and thereafter converting the band into a torus shaped tire without rupturing the fabric of the carcass or tearing it away from the beads. The shaping is done by distending the tread portion of the pulley band and simultaneously moving the bead portions toward each other without imposing any appreciable stress upon the cord elements of the fabric. While held in this distended position, either by mechanical or fluid pressure, the tire carcass is then vulcanized. Saving of labor and material, and a more standardized product, are claimed to be due to this process. While ‘ the Hopkinson patent disclosed both process and apparatus, the latter never came into commercial use, and the process claims are alone in suit. Revolutionary effect upon the industry is asserted" }, { "docid": "12403698", "title": "", "text": "been assembled without the strips having been bent. In fact, prior to April 1982, the bending was performed in the United States , wholly separate from the assembly process in Mexico. Wherever, the bending was more a part of the -fabrication of the steel frames than of the assembly of the merchandise. As the court of appeals concluded in Zwicker, supra, where the finishing of gloves was found to be further fabrication, that process begun in the United States and completed abroad could not be “incidental to the assembly process”. Conclusion To summarize, the bending in question was not incidental to assembly of a fabricated component exported from the United States in condition ready for assembly without further fabrication. The presumption of correctness that attached to the denial of plaintiffs protest by the Customs Service stands, and judgment must therefore enter in favor of the defendant. . See, e.g., trial transcript (\"Tr.”), pp. 42-43. Compare Plaintiffs Exhibit 1 with Plaintiffs Exhibit 7. . From the beginning, the plaintiff has sought to characterize the steel, whether in strip or bent form, as the “frame\". The evidence shows, however, that the metal in its final form and the attached bottom plate, together, comprise the frame. Indeed, the court notes in passing that that term generally connotes enclosure or unity. . See Stipulation of Agreed Statement of Facts, para. 9 and Plaintiffs Exhibit 2; Tr. at 42." }, { "docid": "18200850", "title": "", "text": "Baldwin, Judge. This appeal is from tbe decision and judgment of the United States Customs Court, 70 Cust. Ct. 151, C.D. 4421, 359 F. Supp. 1390 (1973), overruling tbe importer’s protest against tbe denial of an allowance under item 807.00 TSUS for certain products of tbe United States constituting parts of black and white television deflection yokes imported from Taiwan. Tbe yokes were classified under tbe provision for parts of television apparatus in item 685.20 TSUS and that classification is not disputed. We reverse. Tbe involved importations span a time period when two versions of item 807.00 were in effect. Item 807.00, as it was originally enacted in 1963,reads: Articles assembled abroad in whole or in part of products of the United States which were exported for such purpose and which have not been advanced in value or improved in condition abroad by any means other than by the act of assembly_ A duty upon the full value of the imported article, less the cost or value of such products of the United States. . . . Item 807.00, as amended by Public Laws 89-241 and 89-806, in effect in 1967 reads: Articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by any change in form, shape, or otherwise, and (e) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting_ A duty upon the full value of the imported ' article, less the cost or value of such products of the United States.. . The merchandise in issue is magnet wire and lead wire, both of which were on spools when exported from the United States to Taiwan. The magnet wire is used for making the horizontal or vertical coils in the imported yokes. The lead wire is us.ed for making the lead wire harness contained in the deflection" }, { "docid": "12403694", "title": "", "text": "assembly process”, to quote from the opinion, 499 F.2d at 1321, whereas in this action plaintiff’s straight strips of steel could not have been placed immediately into its bags without the work referred to above. That is, the court finds that the strips were not exported in condition ready for assembly, in contrast, for example, to the steel beams in Rudolph Miles, supra, which were not changed in form or shape; only incidental slots and holes were made in them. Item 807.00 equates “operations incidental to the assembly process” with “cleaning, lubricating, and painting.” A regulation of Customs states that components, the product of the United States “will not lose their entitlement to ... exemption by being subjected to operations incidental to the assembly”, 19 C.F.R. § 10.14(a), while another regulation, § 10.16(b), provides examples of such operations as follows: (1) Cleaning; (2) Removal of rust, grease, paint or other preservative coating; (3) Application of preservative paint or coating, including preservative metallic coating, lubricants, or protective encapsulation; (4) Trimming, filing, or cutting off of small amounts of excess materials; (5) Adjustments in the shape or form of a component to the extent required by the assembly being performed abroad; (6) Cutting to length of wire, thread, tape, foil, and similar products exported in continuous length; separation by cutting of finished components ...; and (7) Final calibration, testing, marking, sorting, pressing, and folding of assembled articles. The parties herein do not dispute the nature of the removal of the oil coatings, the encasement of the metal in vinyl and the attachment of the bottom plates. Rather, they have stipulated the issue to be whether the bending of the strips was an incidental operation. On its part, the plaintiff argues that the bending was a “mere adjustment in shape” of the kind contemplated by subsection (5), supra. The court finds on the record before it that the bending process did more than “adjust” the article. The process created the component to be assembled, the essence of which is its configuration. Without the resultant shape, the plastic plate could not be attached so" }, { "docid": "12403693", "title": "", "text": "refers to three earlier decisions, each sub nom. General Instrument Corporation v. United States and reported at 462 F.2d 1156, 59 C.C.P.A. 171 (1972), 480 F.2d 1402, 60 C.C.P.A. 178 (1978), and 499 F.2d 1318, 61 C.C.P.A. 86 (1974). In the first case, the simple cutting to size of wire for placement in a transistor was not held to be further fabrication, nor was such cutting of U.S. components for capacitors in the second case, or for coils in the third. See also United States v. Texas Instruments Inc., 545 F.2d 739, 64 C.C.P.A. 24 (1976) (separation of silicon chips along scored lines not further fabrication). In the third General Instrument case, wire was coiled by means of winding machines, which process involved despooling, forming, cutting, taping and cementing. Here, the plaintiff argues that the “frame-bending operation ... constitutes less fabrication than that expressly permitted by the Court ... in General Instrument III.” Plaintiffs Brief, p. 20. In that case, however, wound wire became, in essence, rewound wire or “capable of immediately entering into the assembly process”, to quote from the opinion, 499 F.2d at 1321, whereas in this action plaintiff’s straight strips of steel could not have been placed immediately into its bags without the work referred to above. That is, the court finds that the strips were not exported in condition ready for assembly, in contrast, for example, to the steel beams in Rudolph Miles, supra, which were not changed in form or shape; only incidental slots and holes were made in them. Item 807.00 equates “operations incidental to the assembly process” with “cleaning, lubricating, and painting.” A regulation of Customs states that components, the product of the United States “will not lose their entitlement to ... exemption by being subjected to operations incidental to the assembly”, 19 C.F.R. § 10.14(a), while another regulation, § 10.16(b), provides examples of such operations as follows: (1) Cleaning; (2) Removal of rust, grease, paint or other preservative coating; (3) Application of preservative paint or coating, including preservative metallic coating, lubricants, or protective encapsulation; (4) Trimming, filing, or cutting off of small" }, { "docid": "12403692", "title": "", "text": "295, 67 C.C.P.A. 37 (1980), the court concluded that stitching to close glove fingers was further fabrication within the meaning of item 807.-00. And in the Proctor & Gamble case, supra, the court held that creation of an absorbent diaper core from fabricated U.S. dry lap also entailed further fabrication. In reaching that result, the court stated that the “sewing and knitting cases seem to indicate that ... operations are fabrication only if they create the basic article.” 11 CIT at -, Slip Op. 87-72 at 4. Cf. United States v. Mast Industries, Inc., 668 F.2d 501, 69 C.C.P.A. 47 (1981) (buttonholing and slitting pockets in pants not further fabrication). Of course, neither sewing nor knitting was the process at issue herein, rather placement of four, corner bends in strips of steel. In Rudolph Miles v. United States, 567 F.2d 979, 65 C.C.P.A. 32 (1978), the court held that the burning of slots and holes into large steel beams before placement in railway boxcars in Mexico did not amount to further fabrication there. The opinion refers to three earlier decisions, each sub nom. General Instrument Corporation v. United States and reported at 462 F.2d 1156, 59 C.C.P.A. 171 (1972), 480 F.2d 1402, 60 C.C.P.A. 178 (1978), and 499 F.2d 1318, 61 C.C.P.A. 86 (1974). In the first case, the simple cutting to size of wire for placement in a transistor was not held to be further fabrication, nor was such cutting of U.S. components for capacitors in the second case, or for coils in the third. See also United States v. Texas Instruments Inc., 545 F.2d 739, 64 C.C.P.A. 24 (1976) (separation of silicon chips along scored lines not further fabrication). In the third General Instrument case, wire was coiled by means of winding machines, which process involved despooling, forming, cutting, taping and cementing. Here, the plaintiff argues that the “frame-bending operation ... constitutes less fabrication than that expressly permitted by the Court ... in General Instrument III.” Plaintiffs Brief, p. 20. In that case, however, wound wire became, in essence, rewound wire or “capable of immediately entering into the" }, { "docid": "5331124", "title": "", "text": "the only remaining operation. 12 Ct. Int’l Trade 243-44. Customs, by challenging all non-assembly operations as not being incidental to assembly, necessarily mandated that the court compare all non-assembly operations against pure assembly. The issue of whether all nonassembly operations must be weighed against pure assembly, however, was not before the court. The court therefore does not read Surgikos as broadly as defendant urges. The court finds that the minor chopping, handling and trimming operations are not merely incidental to assembly, but are so integral to the process as to merge with it. (See Court’s Findings, Tr. at 511) (noting that such processes are related to assembly and may also be part of assembly); see also General Instrument Corp. v. United States, 499 F.2d 1318, 1319-21 (C.C.P.A. 1974) (finding spooling, shaping & machine pressing, cement coating, cutting, stripping, and weaving of magnet and lead wire exported from the United States to Taiwan where wire was wound into coils and cable harnesses as constituting assembly for purposes of item 807.00). These minor operations include placing a notch into the zipper to facilitate the next assembly step, minor trimming of loose threads, simultaneous sewing and cutting of the fly lining, the cutting apart of bands (fabric belt encircling waist) & separation of excessive band lining, the sorting and placing of belt loop components together on a crimping machine to bond the components together, as well as certain supply and handling operations and various manipulations of the fabric so as to make further assembly more efficient. (Tr. at 128-40.) The court, therefore, rejects defendant’s interpretation of assembly as purely the joinder of two components as overly restrictive. The question remains whether pressing is part of the challenged operation compared against assembly. Haggar contends that the challenged operation consists solely of ovenbaking. (Haggar’s Post Trial Br. at 1-2; Haggar’s Post Trial Reply Br. at 9.) According to Haggar, pressing could not be part of the challenged operation because Customs has considered pressing by itself to be minor and incidental to assembly under item 807.00. Id. at 11. However, pressing is necessary to further the" }, { "docid": "23002493", "title": "", "text": "the holes were burned along the flange of each beam. The holes permitted installation of wear plates to protect the center sill from damage and support plates to maintain parts that were placed inside the center sill. Additional apparatus was affixed to the center sill, and the completed center sill was located on the underframe of the boxcar. Opinion Relative to clause (a) of item 807.00, the issue is whether the burning of holes and slots in Mexico constituted “further fabrication.” The Customs Court viewed the burning of slots and holes as “steps performed on the Z-beams until their incorporation into the undercarriages.” The Court concluded that the necessity of these operations showed that the Z-beams were further fabricated. We think the Customs Court erred in following Dillingham, which is distinguishable on its facts. That case concerned a component that was exported from the United States as raw material (wool fiber in the bulk, baled form) “on which much further labor was expended to put it into the condition required to enable it to he needled into the fabric.” The operations performed abroad — opening, oiling, and carding the wool — were processing steps that were themselves distinctly preparatory to assembly with the fabric. There was no sub-assembly involved in the case. A raw material was worked upon to change it into an altered form having new properties. In the instant case, the Customs Court deemed the operations on the Z-beams analogous to the opening, oiling, and carding performed in Dillingham, and concluded that “the burning of the slots and holes in the Z-beams constituted fabrication of a more advanced nature than the operations performed in the Dillingham case.” We do not agree. We were presented with a similar situation in General Instrument Corp. v. United States, 61 CCPA 89, C.A.D. 1128, 499 F. 2d 1318 (1974), in which magnet and lead wire were processed into coils and harnesses (subassemblies) that were assembled into the imported television deflection yokes. In that case, appellee urged upon us precisely the argument that the Customs Court has accepted in the present case —" }, { "docid": "18200854", "title": "", "text": "the United States.” The court found that since the wire products were sub-assembled when first used abroad, they could not be directly employed as components in the assembly of the imported yokes, without further fabrication. Therefore, the court found the holding of Amplifone Corporation v. United States, 65 Cust. Ct. 58, C.D. 4054 (1970) to be dispositive of the .importer’s claim and dismissed the importer’s protest. Opinion In the interim period since the Customs Court’s decision, this court •decided the case of General Instrument Corporation v. United States, 60 CCPA 178, C.A.D. 1106, 480 F. 2d 1402 (1973), familiarity with which is presumed, wherein we specifically rejected the rationale of the Amplifone case. Appellee, while acknowledging this court’s decision in General Instrument, asserts that the facts of the present case are distinguishable therefrom and that the rationale of E. Dillingham, Inc. v. United States, 60 CCPA 39, C.A.D. 1078, 470 F. 2d 629 (1972) should be applicable to the facts of-the instant case. Citing Dillingham, appellee contends that the involved wire was subject to “further fabrication,” thus precluding item 807.00 treatment for the imported wire. In Dillingham, the importer sought item 807.00 treatment for certain fiber and fabric of which imported paper-makers’ felts from Canada were composed. The fiber and fabric were products of American origin and the fiber had been sent to Canada in bulk, baled form. Item 807.00 treatment for the fiber was denied because the fiber component, before being assembled with the fabric, was subjected to further fabrication comprising the steps of “opening, oiling and carding.” It is these operations that appellee asserts are of the same degree as the despooling, cementing, winding, taping, etc., steps performed upon the wire in the instant case, which steps appellee asserts should also be held to constitute further fabrication of the wire components. We cannot agree with that assertion. The steps performed upon the wire after its exportation to Taiwan are not “further fabrication” steps, but rather assembly steps within the meaning of item 807.00. We can perceive no substantial differences between the instant assembly steps and those of General" }, { "docid": "12403689", "title": "", "text": "OPINION AQUILINO, Judge: This action challenges Customs Service denial of a duty deduction under item 807.- 00 of the Tariff Schedules of the United States (“TSUS”) for the value of strips of steel worked in Arizona and delivered to neighboring Nogales in Sonora, Mexico for use in luggage imported into the United States. As exhibited at trial, when they left Tuscon, the strips were straight, approximately T% inches wide and 55 inches long, with a pair of parallel rolled ridges running length-wise and some fourteen s/i6-inch holes drilled along the centerline at specified distances and bearing a protective coat of oil. Their cost or value ranged from 95 cents to $1.26. After arrival at plaintiff’s assembly facility in Nogales, the strips were (1) bent by machine into a form analogous to a squared-sided letter C, (2) cleansed of their oil coatings, (3) covered on the in-sides with vinyl sheaths and (4) riveted, on the open out-sides, to 6V2 X 15%-inch sheets of plastic, which thereby became the bottom plates of completed “frame assemblies”. These resulting, enclosed, rectangular-shaped assemblies were subsequently placed in, and fastened to, sewn bags of vinyl to form light-weight luggage commonly known now by such terms as “soft-side” or “carry-on”. There is no dispute that Customs correctly classified the models covered by the entry in question under TSUS items 706.6235 and 807.00. Rather, the plaintiff seeks a deduction from the duty paid for the value of the steel strips as “fabricated components, the product of the United States” within the meaning of the latter item. It provides for a “duty upon the full value of the imported article, less the cost or value of ... products of the United States” which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity ... by change in form, shape, or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting. Upon denial of such a deduction, this action" }, { "docid": "12403697", "title": "", "text": "and reflected but 1.5 percent of the value of the frame. Cf. Tr. at 56-63. The magnitude of a particular process in terms of time and cost, however, does not make that process any less one of fabrication, nor does it make the result thereof any less significant. In United States v. Oxford Industries, Inc., 668 F.2d 507, 511 n. 11, 69 C.C.P.A. 55 (1981), the court cautioned that cost is but one factor to be considered when making a determination under item 807.00. In Mast Industries, supra, the court of appeals pointed to three factors in analyzing procedures claimed to be incidental. It looked at time and cost, as well as at whether the procedure in question was considered “necessary” in the assembly process. Thirdly, the court considered whether the procedure was “so related” to the assembly that it was “logically performed” with it. See 668 F.2d at 506. Here, logic does not necessarily link the bending-of the steel to the process of assembly of the luggage, even though the product could not have been assembled without the strips having been bent. In fact, prior to April 1982, the bending was performed in the United States , wholly separate from the assembly process in Mexico. Wherever, the bending was more a part of the -fabrication of the steel frames than of the assembly of the merchandise. As the court of appeals concluded in Zwicker, supra, where the finishing of gloves was found to be further fabrication, that process begun in the United States and completed abroad could not be “incidental to the assembly process”. Conclusion To summarize, the bending in question was not incidental to assembly of a fabricated component exported from the United States in condition ready for assembly without further fabrication. The presumption of correctness that attached to the denial of plaintiffs protest by the Customs Service stands, and judgment must therefore enter in favor of the defendant. . See, e.g., trial transcript (\"Tr.”), pp. 42-43. Compare Plaintiffs Exhibit 1 with Plaintiffs Exhibit 7. . From the beginning, the plaintiff has sought to characterize the steel, whether" }, { "docid": "18200856", "title": "", "text": "Instrument which were held not to constitute “further fabrication.” Furthermore, unlike the fiber component in Dillingham, the instant wire, exported to Taiwan on spools, was capable of immediately entering into the assembly. process to make the imported yokes. ■ As to tlie other requirements imposed by item 807.00, it should suffice to repeat what we said in General Instrument. We find that all the articles in issue here meet those requirements. Concededly all are products of the United States and all went into the imported [deflection yokes]. The meaning of “fabricated” is broad and without doubt applies to the [spools of wire] which obviously were manufactured articles. The articles did not lose their physical identity in the [yoke] “by change in form, shape or otherwise.” As stated in United States v. Baylis Brothers Co., 59 CCPA 9, 451 F. 2d 643, 646, C.A.D. 1026 (1971) : “The legislative history makes it equally apparent, however, that Congress did not intend to exclude articles from item 807.00 merely because the American components had undergone some change of form or shape. The test specified in item 807.00 is whether the components have been changed in form, shape or otherwise to such an extent that they have lost their physical identity in the assembled article. The term “physical identity” was used to exclude from item 807.00 .those assembled articles whose American .components are “chemical products, food ingredients, liquids, gases, powders,” and the like.” [Footnote omitted]. Since the only changes in the exported articles were “by being assembled” or ‘by operations incidental to the assembly,” the items have not been “advanced in value”. . . . The decision and judgment of the Customs Court is reversed." }, { "docid": "18200855", "title": "", "text": "fabrication,” thus precluding item 807.00 treatment for the imported wire. In Dillingham, the importer sought item 807.00 treatment for certain fiber and fabric of which imported paper-makers’ felts from Canada were composed. The fiber and fabric were products of American origin and the fiber had been sent to Canada in bulk, baled form. Item 807.00 treatment for the fiber was denied because the fiber component, before being assembled with the fabric, was subjected to further fabrication comprising the steps of “opening, oiling and carding.” It is these operations that appellee asserts are of the same degree as the despooling, cementing, winding, taping, etc., steps performed upon the wire in the instant case, which steps appellee asserts should also be held to constitute further fabrication of the wire components. We cannot agree with that assertion. The steps performed upon the wire after its exportation to Taiwan are not “further fabrication” steps, but rather assembly steps within the meaning of item 807.00. We can perceive no substantial differences between the instant assembly steps and those of General Instrument which were held not to constitute “further fabrication.” Furthermore, unlike the fiber component in Dillingham, the instant wire, exported to Taiwan on spools, was capable of immediately entering into the assembly. process to make the imported yokes. ■ As to tlie other requirements imposed by item 807.00, it should suffice to repeat what we said in General Instrument. We find that all the articles in issue here meet those requirements. Concededly all are products of the United States and all went into the imported [deflection yokes]. The meaning of “fabricated” is broad and without doubt applies to the [spools of wire] which obviously were manufactured articles. The articles did not lose their physical identity in the [yoke] “by change in form, shape or otherwise.” As stated in United States v. Baylis Brothers Co., 59 CCPA 9, 451 F. 2d 643, 646, C.A.D. 1026 (1971) : “The legislative history makes it equally apparent, however, that Congress did not intend to exclude articles from item 807.00 merely because the American components had undergone some change of" }, { "docid": "12403695", "title": "", "text": "amounts of excess materials; (5) Adjustments in the shape or form of a component to the extent required by the assembly being performed abroad; (6) Cutting to length of wire, thread, tape, foil, and similar products exported in continuous length; separation by cutting of finished components ...; and (7) Final calibration, testing, marking, sorting, pressing, and folding of assembled articles. The parties herein do not dispute the nature of the removal of the oil coatings, the encasement of the metal in vinyl and the attachment of the bottom plates. Rather, they have stipulated the issue to be whether the bending of the strips was an incidental operation. On its part, the plaintiff argues that the bending was a “mere adjustment in shape” of the kind contemplated by subsection (5), supra. The court finds on the record before it that the bending process did more than “adjust” the article. The process created the component to be assembled, the essence of which is its configuration. Without the resultant shape, the plastic plate could not be attached so as to constitute the bottom, and the completed frames could not be inserted into plaintiffs bags, thereby imparting the intended overall form and structural stability of the finished luggage. The court concludes that item 807.00 and the attendant regulations do not cover a process which was as necessary to the fa brication of the component as it was to subsequent assembly thereof. In fact, 19 C.F.R. § 10.16(c) provides that [a]ny significant process, operation, or treatment other than assembly whose primary purpose is the fabrication, completion, physical or chemical improvement of a component, ... whether or not it effects a substantial transformation of the article, shall not be regarded as incidental to the assembly and shall preclude the application of the exemption to such article. The plaintiff attempts to equate “incidental” with “insignificant” and thereby argues that the bending process was a minor one allowable under item 807.00. In support of its position, the plaintiff has shown that the bending by machine took some 1.4 percent of the total time required for the assembly process" }, { "docid": "19182649", "title": "", "text": "Baldwin, Judge. This is an appeal by the United States from the decision and judgment of the United States Customs Court, Third Division, sustaining the importer’s protest that certain smocked dress fronts for use in children’s dresses qualify for special duty treatment under item SOT.00 of the Tariff Schedules of the United States [TSUS]. The components of the merchandise involved are fabric and thread of American origin. Prior to exportation from this country, the fabric was cut into pieces of a predetermined size and shape, and a design made up of dots was stencilled on the fabric pieces. The size of the exported fabric pieces was such that when the smocking operation was •completed the dress fronts would be the proper size for use in children’s dresses. The cut and stencilled pieces of fabric, along with the thread, were then exported to Barbados, where the smocking operation took place. The fabric was smocked by sewing the thread through the stencilled dots to obtain gatherings of material or shirrs. After the smocking operation the completed dress fronts were imported into the United States. Item 807.00, TSUS, provides ias follows: •'807.00 Articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape, or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process snch as cleaning, lubricating, and painting_A duty upon the full value of the imported article, less the cost or value of such products of the United States The Customs Court held that the smocking operation was an “assembly” within the meaning of that term as it is used, in various forms in item 807.00, and that the only advancement in value of the American components of the imported merchandise was that brought about by the act of assembly. In reaching its conclusion that the smocking in this case met" }, { "docid": "23002498", "title": "", "text": "cannot, however, be determined by the mere size of the component. The problem in the instant case is the counterpart of that in General Instrument Corp. v. United States, 59 CCPA 171, 173-74, C.A.D. 1062, 462 F. 2d 1156, 1158 (1972). where we said: Due to the small sizes of the parts and the fineness of the gold wire, which is barely visible to the naked eye, highly specialized techniques are required for handling and bonding it to the die. * * * The uncontroverted evidence is that in the course of using the gold wire in the manner above desoribed, to make electrical connections between the silicon die and the nailhead leads, the physical, chemical, and electrical properties of the wire and its diameter are not changed. The bulk wire is, obviously, cut, and the pieces are bent and welded or otherwise bonded at their ends in the 'process of removing the wire from the spool and using it for its intended purpose as a component in the transistors. [Emphasis added.] In the present case, the components require their own appropriate techniques because they are large steel parts. Such parts must be rigidly secured if they are to withstand the stresses that they must as boxcar components. Thus, in perspective, burning the slots and holes of the aforestated dimensions in 55' steel Z-beams to permit their assembly is not such substantial change as constitutes further fabrication. Rather, the processing in Mexico was merely part of the assembly of the Z-beams into center sills and “incidental to the assembly process” as provided in item 807.00(c). Regarding clause (c) of item 807.00, TSUS, United States v. Jovita Perez, supra, is not dispositive of the present case. The statute that was applied in Perez, paragraph 1615(a) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, 52 Stat. 1077, 1092, provided free entry for: Articles, the growth, produce, or manufacture of the United States, when returned after having been exported, without having been advanced in valúa or improved in condition by any process of manufacture or other" } ]

[ { "docid": "22301811", "title": "", "text": "might conceivably be sustainable on this ground. On the other hand, if the district court did hold as its basis for dismissing for lack of subject matter jurisdiction that the alleged facts bore an insufficient relation to the foreign commerce of the United States, that same deficiency could also be considered a ground on which the suit could be dismissed for failure to state a claim under the antitrust laws. See Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 742 n.l, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). Although the Supreme Court in Hospital Building did not elaborate, it | seems settled that, when a statute provides ' the basis for both the subject matter jurisdiction of the federal court and the plaintiffs’ substantive claim for relief, a motion ■ to dismiss for lack of subject matter jurisdiction rather than for failure to state a claim is proper only when the allegations of •the complaint are frivolous. O’Neill v. Maytag, 339 F.2d 764, 766 & n.3 (2d Cir. 1964). See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Such is clearly not the case here. Thus, if the district court dismissed under either Rule 56 itself or Rule 12(b)(6) (the /proper motion for a defense pleading either | the act of state doctrine or the lack of a sufficient nexus between the alleged violation and our foreign commerce), Rule 56 treatment woúld seem to have been indicated for the instant case. See also Rule 12(c). Having secured Rule 56 treatment, it does not, however, necessarily follow that plaintiffs were entitled under Rule 56(e) to full discovery. That section provides only that the “court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” (Emphasis added.) Accordingly, plaintiffs had no. general right to discovery under the provisions of Rule 56(e). Nevertheless, we note that the Supreme Court has expressed disapproval of summary disposition in this type of case: We believe that summary procedures should be used sparingly in complex antitrust litigation where motives and intent" } ]

[ { "docid": "935615", "title": "", "text": "as to the acts involved — see 15 U.S.C. § 15b; Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) — and probably as to any injuries sustained as a result of those acts. Id. What they do accomplish is to alert all concerned that those events, although not themselves actionable in antitrust, are the real motive for this suit. Plaintiff himself readily admits as much in paragraph 16 of the affidavit: “I believe the course of action that caused embarrasment [sic] and loss of income to me, as general manager and stock holder [sic] of Channel 41 is well established in the previous paragraphs of this affidavit.” As for the issue of the causal relationship between the conspiracy and the injury, plaintiff says only that he believes “that most of the specific facts by which I intend to prove that the alleged conspiracy was the proximate cause of any unreasonable restraint trade [sic] can be found in the files and correspondence between West Michigan Telecasters,. Inc. and the American Broadcasting Company and Mary Jane Morris. I further believe that detailed depositions of the people involved, detailed examinations of the records of Defendant, West Michigan Telecasters, Inc., and detailed examinations of the files of the American Broadcasting Company will reveal in detail many of the facts that I am merely alleging in this amendment and supplimental [sic] affidavit.” Plaintiff’s Supplemental Affidavit, if 15. Such further discovery, although permitted in appropriate cases under Rule 56(f), is unwarranted in this ease, where it is clear that it would not be directed at filling a specific evidentiary gap, but rather would consist of blind groping, undertaken in the hope of finding something to which this suit could be anchored. It is true that summary procedures should be used sparingly in complex antitrust litigation. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). However, this policy of restraint is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its" }, { "docid": "22422317", "title": "", "text": "violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. Even given the teachings of Conley, which we must follow in all events, the plaintiff must allege sufficient facts in the complaint to survive a Rule 12(b)(6) motion. Confronted with such a motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law. Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), F.R.Civ.P. (emphasis added). The Court of Appeals for the Second Circuit has held that dismissal with prejudice of a “bare bones” allegation of antitrust conspiracy without any supporting facts is appropriate where, as here, the plaintiff has already amended his complaint once with leave of the court. Heart Disease Research Found, v. General Motors Corp., 463 F.2d 98, 100 (2d Cir.1972). Moreover, in a case involving dismissal of an amended complaint, the Supreme Court noted that the plaintiff “had an adequate opportunity to amend its pleading to add failed allegations demonstrating that the District Court’s decision to dismiss the complaint was based on a misunderstanding of its antitrust claim.” Associated Gen. Contractors of Cal. v. California State Counsel of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Speaking through Justice Stevens, the Court stated: As the case comes to us, we must assume that the [plaintiff] can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged. Id. at 526 n. 11. Accordingly, we will review the plaintiff's amended complaint in detail, keeping in mind that Pennsylvania’s rights rise no higher than the facts it has alleged," }, { "docid": "6884957", "title": "", "text": "resulting damages is\\not sufficient to withstand a motion for summary judgment once they have I been rebutted, ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 54-57 (9th Cir. 1975); see, e. g., Kemp Pontiac-Cadillac, Inc. v. Hartford Automobile Dealers’ Ass’n, 380 F.Supp. 1382, 1389 (D.Conn.1974) (“glib and conclusory allegations” of conspiracy are insufficient to raise genuine)issues in face of specific denials in sworn depositions and affidavits by defendants); Searer v. West Michigan Telecasters, Inc., 381 F.Supp. 634, 643 (W.D.Mich.1974) (the policy of sparing use of summary procedures in antitrust cases “is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its allegations, to force his claim to trial despite its deficient factual underpinnings”); Murdock v. City of Jacksonville, 361 F.Supp. 1083, 1086-87 (M.D.Fla.1973) (“Even in an antitrust case a party cannot rest on the allegations contained in his complaint but must, in opposition to a motion for summary judgment, come forward with affidavits setting forth specific facts showing that there is a genuine issue of material fact for trial”) (citations omitted). We have recently had occasion to apply these principles in Scranton Construction Co. v. Litton Industries Leasing Corp., 494 F.2d 778, 782 (5th Cir. 1974), cert. denied, 419 U.S. 1079, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975), wherein we stated: We have searched the record in vain for evidence supporting plaintiffs’ allegations of a combination or conspiracy against them between Litton and anyone in the area of plaintiffs’ claims. Proof of this is, of course, essential to plaintiffs’ case under § 1 of the Sher man Act and to its conspiracy claims under § 2. Facing defendants’ sworn challenge to the existence of such a conspiracy, it was up to plaintiffs to produce significant probative evidence —by affidavit or deposition — demonstrating that a genuine issue of fact existed as to this element of the complaint, if summary judgment was to be avoided, (citations omitted, emphasis added). Similarly, a review of the record in this case reveals a total lack of any significant probative evidence, by 'means of sworn" }, { "docid": "22892092", "title": "", "text": "summary judgment evidence, since that motion was legally insufficient. The argument appears to run as follows. After the Supreme Court handed down Illinois Brick, defendants moved for summary judgment on the basis of that case. Unfortunately for defendants, they merely asserted that plaintiffs were indirect purchasers and therefore were barred. Significantly, defendants never proved the absence of a genuine issue of material fact with respect to the functional equivalence of pre-existing cost-plus contract arrangements. Defendants’ motion thus being legally insufficient, plaintiffs never were under any obligation to counter it. Unfortunately for appellants, their argument merely begs the question. We see no logical reason to hold that defendants were under an obligation to prove the absence of some threshold element of plaintiffs’ case, where plaintiffs never even bothered or were factually unable to put that element in issue, either through their complaints or through their resistance to defendants’ motion for summary judgment. Despite the liberality of modern rules of pleading, a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. See City of Gainesville v. Florida Power & Light Co., 488 F.Supp. 1258, 1263 (S.D.Fla.1980) (citing C. Wright & A. Miller, 5 Federal Practice and Procedure § 1216, at 121-23); cf. McClain v. Real Estate Board of New Orleans, 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980) (to establish federal antitrust jurisdiction on ground of relationship to interstate commerce, plaintiff must allege the critical relationship in the pleadings and, if allegations are controverted, must demonstrate relationship by submission of evidence beyond the pleadings). As now-Chief Justice Burger once argued, “if a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and money by the parties and the court.” Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Hawaii 1953). Finally, appellants argue that even if defendants’ motion for summary judgment was legally" }, { "docid": "9842384", "title": "", "text": "services. Paycom alleges that the CBA Rules represent an unlawful market allocation scheme in which domestic banks are insulated from having to compete against foreign banks that might otherwise provide services to internet merchants. DISCUSSION The district court dismissed Paycom’s complaint in its entirety. This appeal followed. a) Standard of Review We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiffs favor. United States v. Space Hunters, Inc., 429 F.3d 416, 424 (2d Cir.2005). We will affirm a district court’s dismissal where the plaintiff can prove no set of facts, consistent with its allegations, that would entitle it to the relief sought. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). These generous standards “appl[y] with no less force to'... Sherman Act claim[s],” McLain v. Real Estate Bd., 444 U.S. 232, 246, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), and “[n]o heightened pleading requirements apply in antitrust cases.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001). While motions to dismiss “[i]n antitrust cases in particular ... ‘should be granted very sparingly,’ ” George Haug Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 139 (2d Cir.1998) (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976)), we do not “permit conclusory statements to substitute for minimally sufficient factual allegations.” Furlong, M.D. v. Long Island College Hosp., 710 F.2d 922, 927 (2d Cir.1983). b) Federal Antitrust Law “Although the Sherman Act, by its terms, prohibits every agreement ‘in restraint of trade,’ th[e Supreme] Court has long recognized that Congress intended to outlaw only unreasonable restraints.” State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (citation omitted). Some , conduct is prohibited because it is deemed unreasonable per se. Other conduct is outlawed only after evaluation under the so-called “rule of reason.” Id. The per se label is applied “[o]nce experience with" }, { "docid": "22285046", "title": "", "text": "not preclude prosecution of a stockholder’s derivative action theretofore filed, and that principle seems entirely applicable here. As the Supreme Court said, the trustee is sufficiently protected by his rights to start a new suit, to intervene in the existing one, to settle the claim, or, if he deems its prosecution actually prejudicial, to cause the action to be abated. 327 U.S. at 167-168 and n. 14. The district judge did not reach appellees’ alternative point that the complaint did not set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” required by F.R.Civ.P. 8. As to this we agree with appellees. The statement, which we have quoted in full, although assuredly “short,” is anything but “plain” —it furnishes not the slightest clue as to what conduct by the defendants is claimed to constitute “an illegal contract combination and conspiracy.” While Nagler v. Admiral Corp., 248 F.2d 319, 322-323 (2 Cir. 1957), repudiated the idea that “some special pleading * * * is required in antitrust cases,” it is no authority that in such cases the pleader is specially privileged to plead nothing but the statutory words. A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. See 2 Moore, Federal Practice [[8.13 (2d ed. 1964). But it is equally clear that if the district judge had properly taken this view, amendment of the complaint would nevertheless be allowed. See 3 Moore, Federal Practice j[f[15.08[2], 15.10 (2d ed. 1964). It would thus be improper to affirm dismissal upon this ground. The judgment of dismissal for want of capacity to sue is reversed with instructions to grant leave to file an amended complaint, in default of which a new order of dismissal may be entered. . Although the defense of lack of capacity is not expressly mentioned in" }, { "docid": "6734607", "title": "", "text": "assented to all of appellant’s motions for enlargement of time. Much of the suit’s delay can be attributed to completion of the discovery that the appellees initiated. They do not and apparently cannot allege prejudice from the delay; appellant’s amendments simply sought to incorporate facts in the complaint that appellees had already discovered from their interrogatories. Absent a discretionary judgment by the district court and given the liberal rule favoring amendment, Fed.R.Civ.Proc. 15(a), we cannot hold as a matter of law that a trial court under these circumstances would abuse its discretion by permitting amendment. Appellees’ jurisdictional argument fails in claiming that here there is no effect on interstate commerce. Appellant’s amended complaint asserted that 75-85 percent of the cars parking in the lots serving the Authority are from out of state, and that parking rates are “considerably” higher as a result of the absence of competition. At this stage of factual development, we believe this situation “ ‘as a matter of practical economics’ [has] ... a not insubstantial effect on the interstate commerce involved.” McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 245, 100 S.Ct. 502, 510, 62 L.Ed.2d 441 (1980). Finally, we are not persuaded by appellees’ assertion that appellant’s complaint deserves dismissal for its conclusory nature. “There is no special rule requiring more factual specificity in antitrust pleadings.” Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir. 1980) . Appellant’s complaints are adequate though perhaps roughhewn works of notice pleading. We therefore reverse the district court’s decisions. This holding does not win the case for appellant, of course. It merely allows him to try to support his allegations. Appellant must prove his assertions to be true — especially with respect to the claim that anticompetitive design and not some more innocent motivation explains the alleged acts that are claimed to constitute the boycott here. See Allied International, Inc. v. International Longshoremen’s Association, AFL-CIO, 640 F.2d 1368 (1st Cir. 1981) . Reversed and remanded for further proceedings consistent with this opinion. . In addition to the above antitrust claim, the" }, { "docid": "22285047", "title": "", "text": "it is no authority that in such cases the pleader is specially privileged to plead nothing but the statutory words. A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. See 2 Moore, Federal Practice [[8.13 (2d ed. 1964). But it is equally clear that if the district judge had properly taken this view, amendment of the complaint would nevertheless be allowed. See 3 Moore, Federal Practice j[f[15.08[2], 15.10 (2d ed. 1964). It would thus be improper to affirm dismissal upon this ground. The judgment of dismissal for want of capacity to sue is reversed with instructions to grant leave to file an amended complaint, in default of which a new order of dismissal may be entered. . Although the defense of lack of capacity is not expressly mentioned in rule 12(b), the practice has grown up of examining it by a 12(b) (6) motion when the defect appears upon the face of the complaint. See Hershel Cal. Fruit Prods. Co. v. Hunt Foods, Inc., 119 F.Supp. 603 (N.D.Cal.1954); Coburn v. Coleman, 75 F. Supp. 107 (W.D.S.C.1947); compare Jacques Krinj En Zoon v. Schrijver, 151 F.Supp. 955 (S.D.N.Y.1957), an approach widely employed for the statute of limitations defense, see 2 Moore, Federal Practice ¶12.10 (2d ed. 1964). In any event, the plaintiffs have not objected, and the portion of the motion relating to capacity could be regarded as a pre-answer motion for summary judgment, entertained by the judge in his discretion. F.R.Civ.P. 56(b). . Note also the “double derivative” action by a stockholder of a corporation owning the stock of the injured corporation. See Holmes v. Camp, 180 App.Div. 409, 167 N.Y.S. 840 (1917); Goldstein v. Groes-beck, 142 F.2d 422, 425, 154 A.L.R. 1285 (2 Cir.), cert. denied, 323 U.S. 737, 67 S.Ct. 36, 89 L.Ed. 590 (1944); 2 Hornstein, Corporation Law and Practice §" }, { "docid": "307926", "title": "", "text": "United States, 345 U.S. 594, 613-14, 73 S.Ct. 872, 883, 97 L.Ed.2d 1277 (1953); Aamco Automatic Transmissions, Inc. v. Tayloe, 407 F.Supp. 430, 434 (E.D.Pa.1976). Viewed from any angle, then, Mack is entitled to judgment as a matter of law on plaintiff’s tie-in claim. Plaintiff’s only response seems to be that Mack has resisted discovery. This answer is unresponsive and without merit. This is not a case like Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976) where plaintiffs have not had ample opportunity for discovery. To the contrary, the plaintiff has stubbornly resisted Mack’s numerous efforts to discern the basis of this claim. I note that plaintiff has not moved for sanctions under Rule 37(b) or for time to complete discovery under Rule 56(f). Having already discussed this claim at length, I decline to speculate further as to plaintiff’s intentions. He may, for example, have intended to state a claim under Sherman § 2 for conspiracy to monopolize or, that elusive beast, attempt to monopolize. See American Tobacco Co. v. United States, 328 U.S. 781, 785-86, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946). Even under a liberal construction, a line must be drawn somewhere. Fed.R.Civ.P. 8(a)(2) requires that the complaint “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). While antitrust complaints are not subject to especially stringent pleading, see Knuth, supra, neither are they exempt from the federal rules. As Judge Friendly has observed: A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. Klebanow v. New York Produce Exchange, 344 F.2d 294, 299 (2d Cir. 1965). Sims’ antitrust allegations fall below the standard of fair notice" }, { "docid": "935616", "title": "", "text": "Inc. and the American Broadcasting Company and Mary Jane Morris. I further believe that detailed depositions of the people involved, detailed examinations of the records of Defendant, West Michigan Telecasters, Inc., and detailed examinations of the files of the American Broadcasting Company will reveal in detail many of the facts that I am merely alleging in this amendment and supplimental [sic] affidavit.” Plaintiff’s Supplemental Affidavit, if 15. Such further discovery, although permitted in appropriate cases under Rule 56(f), is unwarranted in this ease, where it is clear that it would not be directed at filling a specific evidentiary gap, but rather would consist of blind groping, undertaken in the hope of finding something to which this suit could be anchored. It is true that summary procedures should be used sparingly in complex antitrust litigation. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). However, this policy of restraint is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its allegations, to force his claim to trial despite its deficient factual underpinning. The Rule is quite clear and applies to all cases, even antitrust cases. “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Fed.R.Civ.P. 56(e). “To the extent that petitioner’s burden-of-proof argument can be interpreted to suggest that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it. While we recognize the importance of preserving litigants’ rights to a" }, { "docid": "6342396", "title": "", "text": "(E.D. Pa.1973). It is appropriate, however, when “it is plain that the allegedly unlawful practice does not exist, and that plaintiff’s claim is without merit,” Capital Temporaries, Inc. v. Olsten Corp., 365 F.Supp. 888, 895 (D.Conn.1973), aff'd, 506 F.2d 658 (2d Cir. 1974). The mere alle gation of the Sherman Act claim requirements of a contract, combination, or conspiracy for the purpose of restraining trade or interstate commerce and resulting damages are not sufficient to withstand a motion for summary judgment once they have been rebutted, ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 54—57 (9th Cir. 1975); see, e. g., Kemp Pontiac-Cadillac, Inc. v. Hartford Auto-mobile Dealers’ Ass’n, 380 F.Supp. 1382, 1389 (D.Conn.1974) (“g;lib and conclusory allegations” of conspiracy are insufficient to raise genuine issues in face of specific denials in sworn depositions and affidavits by defendants); Searer v. West Michigan Telecasters, Inc., 381 F.Supp. 634, 643 (W.D.Mich.1974) (the policy of sparing use of summary proee dures in antitrust cases “is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its allegations, to force his claim to trial despite its deficient factual underpinnings”); Murdock v. City of Jacksonville, 361 F.Supp. 1083, 1086-87 (M.D.Fla.1973) (“Even in an antitrust case a party cannot rest on the allegations contained in his complaint but must, in opposition to a motion for summary judgment, come forward with affidavits setting forth specific facts showing that there is a genuine issue of material fact for trial”) (citations omitted). We have recently had occasion to apply these principles in Scranton Construction Co. v. Litton Industries Leasing Corp., 494 F.2d 778, 782 (5th Cir. 1974), cert. denied, 419 U.S. 1079, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975), wherein we stated: We have searched the record in vain for evidence supporting plaintiffs’ allegations of a combination or conspiracy against them between Litton and anyone in the area of plaintiffs’ claims. Proof of this is, of course, essential to plaintiffs’ case under § 1 of the Sherman Act and to its conspiracy claims under § 2. Facing defendants’ sworn challenge" }, { "docid": "6884956", "title": "", "text": "held that summary judgment is appropriate in antitrust cases where the plaintiff can offer only vague and conclusory charges: We are fully cognizant that summary judgment is drastic relief which must be applied with caution and that the pleadings of the party opposing it are to be liberally construed, e. g., Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975). Summary judgment is not generally favored in antitrust cases, see, e. g., Clark v. United Bank, 480 F.2d 235, 240 (10th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240 (1973); Williams v. Pennsylvania Co., 367 F.Supp. 1158, 1167 (E.D.Pa.1973). It is appropriate, however, when “it is plain that the allegedly unlawful practice does not exist, and that plaintiff s claim is without merit,” Capital Temporaries, Inc. v. Olsten Corp., 365 F.Supp. 888, 895 (D.Conn. 1973), aff’d, 506 F.2d 658 (2d Cir. 1974). The mere allegation oi the Sherman Act claim requirements of a contract, combination, or conspiracy for the purpose of restraining trade or interstate commerce and resulting damages is\\not sufficient to withstand a motion for summary judgment once they have I been rebutted, ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 54-57 (9th Cir. 1975); see, e. g., Kemp Pontiac-Cadillac, Inc. v. Hartford Automobile Dealers’ Ass’n, 380 F.Supp. 1382, 1389 (D.Conn.1974) (“glib and conclusory allegations” of conspiracy are insufficient to raise genuine)issues in face of specific denials in sworn depositions and affidavits by defendants); Searer v. West Michigan Telecasters, Inc., 381 F.Supp. 634, 643 (W.D.Mich.1974) (the policy of sparing use of summary procedures in antitrust cases “is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its allegations, to force his claim to trial despite its deficient factual underpinnings”); Murdock v. City of Jacksonville, 361 F.Supp. 1083, 1086-87 (M.D.Fla.1973) (“Even in an antitrust case a party cannot rest on the allegations contained in his complaint but must, in opposition to a motion for summary judgment, come forward with affidavits setting forth specific facts showing that there is a genuine issue of" }, { "docid": "22101973", "title": "", "text": "Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965); United States v. New Wrinkle, Inc., 342 U.S. 371, 376, 72 S.Ct. 350, 352, 96 L.Ed. 417 (1952). We must not, however, assume plaintiffs can prove facts not alleged or that defendants have violated the antitrust laws in ways not alleged. Associated General Contractors of California, Inc. v. California State Council of Carpenters, — U.S. —, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Notwithstanding this caveat, the threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low. Rule 8(a)(2) of the Federal Rules of Civil Procedure mandates that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” At one time, the danger of abuse of the antitrust laws — induced by the possibility of treble damage recovery— was thought to necessitate detailed pleading beyond the general notice requirements of rule 8(a)(2). This view, however, has been generally rejected. It is now well accepted that notice pleading is all that is required for a valid antitrust complaint. E.g., Quinonez v. National Association of Securities Dealers, Inc., 540 F.2d 824 (5th Cir.1976). By notice pleading, we mean that the complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Because of the liberal pleading requirements of the Federal Rules, rarely will a motion to dismiss for failure to state a claim be granted. Indeed, such a motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 602 (5th Cir.1981);" }, { "docid": "307927", "title": "", "text": "to monopolize. See American Tobacco Co. v. United States, 328 U.S. 781, 785-86, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946). Even under a liberal construction, a line must be drawn somewhere. Fed.R.Civ.P. 8(a)(2) requires that the complaint “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). While antitrust complaints are not subject to especially stringent pleading, see Knuth, supra, neither are they exempt from the federal rules. As Judge Friendly has observed: A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. Klebanow v. New York Produce Exchange, 344 F.2d 294, 299 (2d Cir. 1965). Sims’ antitrust allegations fall below the standard of fair notice set forth in Rule 8(a)(2). The courts of appeals have been conscious of the danger present in general allegations of antitrust violations, and have affirmed dismissal of similarly broad and vague antitrust complaints. See California Dump Truck Owners Ass’n. v. Associated General Contractors of America, 562 F.2d 607, 615 (9th Cir. 1977). The Second Circuit has held that dismissal with prejudice of a “bare bones” allegation of antitrust conspiracy is appropriate where, as here, the plaintiff has already amended his complaint once with leave of the court. Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972); see also Keco Industries, Inc. v. Borg-Warner Corp., 334 F.Supp. 1240, 1244 (M.D.Pa.1971). Given the long history of this litigation, plaintiff’s apparent indifference to this claim, and the potentially enormous cost in time and resources necessary to try an antitrust claim, .1 find that defendant would be unduly prejudiced if I were to grant plaintiff leave to amend. For the reasons stated above, to the extent that plaintiff seeks a recovery for unlawful" }, { "docid": "6342395", "title": "", "text": "Farms and Coca-Cola “changed the entire complexion” of the case and “fatally weakened its otherwise reasonably sturdy framework.” The district court then held that it was “hard pressed to find a clearer or more classic case of a simple, unilateral refusal to deal.” In the lower court’s view the doctrine of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), that such a refusal was not violative of the antitrust laws controlled. The district court did not err in its conclusions. We are fully cognizant that summary judgment is drastic relief which must be applied with caution and that the pleadings of the party opposing it are to be liberally construed, e. g., Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975). Summary judgment is not generally favored in antitrust cases, see, e. g.. Clark v. United Bank, 480 F.2d 235, 240 (10th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240 (1973); Williams v. Pennsylvania Co., 367 F.Supp. 1158, 1167 (E.D. Pa.1973). It is appropriate, however, when “it is plain that the allegedly unlawful practice does not exist, and that plaintiff’s claim is without merit,” Capital Temporaries, Inc. v. Olsten Corp., 365 F.Supp. 888, 895 (D.Conn.1973), aff'd, 506 F.2d 658 (2d Cir. 1974). The mere alle gation of the Sherman Act claim requirements of a contract, combination, or conspiracy for the purpose of restraining trade or interstate commerce and resulting damages are not sufficient to withstand a motion for summary judgment once they have been rebutted, ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 54—57 (9th Cir. 1975); see, e. g., Kemp Pontiac-Cadillac, Inc. v. Hartford Auto-mobile Dealers’ Ass’n, 380 F.Supp. 1382, 1389 (D.Conn.1974) (“g;lib and conclusory allegations” of conspiracy are insufficient to raise genuine issues in face of specific denials in sworn depositions and affidavits by defendants); Searer v. West Michigan Telecasters, Inc., 381 F.Supp. 634, 643 (W.D.Mich.1974) (the policy of sparing use of summary proee dures in antitrust cases “is no warrant for every plaintiff who can draft an antitrust complaint," }, { "docid": "22101974", "title": "", "text": "It is now well accepted that notice pleading is all that is required for a valid antitrust complaint. E.g., Quinonez v. National Association of Securities Dealers, Inc., 540 F.2d 824 (5th Cir.1976). By notice pleading, we mean that the complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Because of the liberal pleading requirements of the Federal Rules, rarely will a motion to dismiss for failure to state a claim be granted. Indeed, such a motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 602 (5th Cir.1981); Quinonez, 540 F.2d at 826-27. This is particularly true in an antitrust suit where the proof and details of the alleged conspiracy are largely in the hands of the alleged co-conspirators. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Hence the Supreme Court has indicated that a complaint should not be dismissed unless it is found to be “wholly frivolous.” Radovich v. National Football League, 352 U.S. 445, 453, 77 S.Ct. 390, 395, 1 L.Ed.2d 456 (1957) (quoting Hart v. B.F. Keith Vaudeville Exchange, 262 U.S. 271, 274, 43 S.Ct. 540, 541, 67 L.Ed. 977 (1923)). This is not to say that liberal pleading requirements negate the need to draft an antitrust complaint in a careful and thoughtful fashion. An antitrust complaint “must comprehend a so-called prima facie case,” Quinonez, 540 F.2d at 828, and enough data must be pleaded so that each element of the alleged antitrust violation can be properly identified. 2A J. Moore, Federal Practice ¶ 8.17[3] .at 81-171 (1982); 5" }, { "docid": "7670503", "title": "", "text": "notice to the opposing party is all that is necessary in antitrust cases, as in other eases under the Federal Rules... [;][t]he discovery process is designed to provide whatever additional sharpening of the issues may be necessary”); Nagler v. Admiral Corp., 248 F.2d 319, 322-23 (2d Cir.1957) (noting that “[i]t is true that antitrust litigation may be of wide scope and without a central point of attack, so that defense must be diffuse, prolonged, and costly,” and that “many defense lawyers have strongly advocated more particularized pleading in this area of litigation,” but concluding that “it is quite clear that the federal rules contain no special exceptions for antitrust cases”). Indeed, it has been argued from time to time that antitrust cases are less suitable candidates for dismissal at the pleading stage than some other kinds of litigation because evidence of the claimed illegality is likely to be in the exclusive control of the defendants. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (“[I]n antitrust cases, where ‘the proof is largely in the hands of the alleged conspirators,’ dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.” (quoting Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962))). True, we have said that “[although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research Found. v. Gen. Motors Corp., 463 F.2d 98, 100 (2d Cir.1972); see also Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 299 (2d Cir.1965) (“A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently.”). “[Mjinimal requirements are not tantamount to nonexistent requirements.” Gooley v. Mobil Oil" }, { "docid": "7670504", "title": "", "text": "(“[I]n antitrust cases, where ‘the proof is largely in the hands of the alleged conspirators,’ dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.” (quoting Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962))). True, we have said that “[although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research Found. v. Gen. Motors Corp., 463 F.2d 98, 100 (2d Cir.1972); see also Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 299 (2d Cir.1965) (“A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently.”). “[Mjinimal requirements are not tantamount to nonexistent requirements.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). In Klebanow, for example, we rejected as insufficient a complaint that alleged simply that the defendants had engaged “in an illegal contract combination and conspiracy with others, unknown to the plaintiffs, to restrain and monopolize trade in, and to fix the price of, cottonseed oil,” causing damages in excess of $11 million. Klebanow, 344 F.2d at 296 (internal quotation marks omitted). Judge Friendly, writing for the Court, noted that the complaint “furnishe[d] not the slightest clue as to what conduct by the defendants is claimed to constitute ‘an illegal contract combination and conspiracy.’ ” Id. at 299. But in United States v. Employing Plasterers’Ass’n, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618 (1954), the Supreme Court considered. a complaint in a civil action brought by the federal government against a trade association, a labor union, and the union’s president. Between them, the de fendants were responsible for some sixty percent of the Chicago-area plastering contracting market. Id. at 187, 74 S.Ct. 452. The government alleged that the" }, { "docid": "22422316", "title": "", "text": "which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified “notice pleading” is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Id. at 47-48, 78 S.Ct. at 103 (footnotes omitted). Speaking through Judge Seitz, this court in 1968 admonished that “we should be extremely liberal in construing antitrust complaints.” Knuth v. Erie-Crawford Dairy Coop., 395 F.2d 420, 423 (3d Cir.1968), cert. denied, 410 U.S. 913, 93 S.Ct. 966, 35 L.Ed.2d 278 (1973). But, as Judge Joseph S. Lord III ably pointed out in 1980, “[w]hile antitrust complaints are not subject to especially stringent pleadings, see Knuth, supra, neither are they exempt from the federal rules.” Sims v. Mack Truck Corp., 488 F.Supp. 592, 608 (E.D.Pa.1980). Judge Friendly hammered home the same point in Klebanow v. New York Produce Exch., 344 F.2d 294, 299 (2d Cir.1965): A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently. Even given the teachings of Conley, which we must follow in all events, the plaintiff must allege sufficient facts in the complaint to survive a Rule 12(b)(6) motion. Confronted with such a motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law. Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), F.R.Civ.P. (emphasis added). The Court of Appeals for the Second Circuit has held that dismissal with prejudice of a “bare bones” allegation of antitrust conspiracy without any supporting facts is appropriate where, as here, the plaintiff has already amended his complaint once with leave of the court." }, { "docid": "12312014", "title": "", "text": "to attempt to obtain a monopoly in the appliance business.” On the theory that a defendant can, through pretrial discovery, learn the facts forming the basis of a claim asserted against him, the federal courts have been liberal in allowing so-called “notice” pleading under the Federal Rules. Even measured by such standards, however, the allegations here are woefully inadequate. In response to defendant’s assertion that the foregoing allegations are hopelessly vague, plaintiff cites the holding of Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957), that an antitrust complaint need set forth only a “short and plain statement” of the claim. In Klebanow v. New York Produce Exchange, 344 F.2d 294 (2d Cir. 1965), however, the Second Circuit stated: “While Nagler v. Admiral Corp. * * * repudiated the idea that ‘some special pleading * * * is required in antitrust cases,’ it is no authority that in such cases the pleader is specially privileged to plead nothing but the statutory words. A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently.” Plaintiff’s allegation of price discrimination does no more than parrot some of the language of 15 U.S.C. § 13. Plaintiff has in no way alleged in what manner it has been harmed by defendant’s alleged transgression, and, upon the argument, plaintiff’s counsel conceded facts indicating that it could not in fairness make any such allegation. Its allegations of price discrimination are limited to products on which defendant uses the mark “Americana”, namely, electric ranges and refrigerators. But it is conceded that plaintiff has not bought, or attempted to buy, these products from defendant, and that it has neither competed nor sought to compete with the defendant in the sale of them. The failure to specify in the complaint the impact of defendant’s wrongs on plaintiff renders an antitrust allegation insufficient. See Beegle" } ]

[ { "docid": "14082928", "title": "", "text": "of the plaintiffs to comply with the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. We are of the view that such issues are not before us. They are raised, as we understand, on the theory that a labor dispute is involved and that by the order appealed from the court below has awarded the disputed work to the porters. Such is not the case. The only Issue below, as well as here, is whether the ‘Order of the Board is void for failure to give plaintiffs notice of the proceeding, as alleged in their complaint and as found by the court. And a holding in favor of the plaintiffs means nothing more than that tlie porters and the brakemen are relegated to the same position they occupied before spch Award was made. In such case the parties and the carrier are again free to attempt to settle the dispute by collective bargaining or an appropriate proceeding under the Railway Labor Act. As was said in Missouri-Kansas-Texas R. Co. et al. v. Randolph et al., 8 Cir., 164 F.2d 4, 8, so much relied upon by the brakemen: “Insofar as the railroads propose to terminate the existing! contract with the porters and to change their working conditions, the statute gives the porters the right to resort to the Mediation Board, 45 U.S.C.A. § 155, and that Board is required to use i'ts best efforts to bring about an amicable settlement, 45 Ú.S.C.A. § 152.» Paragraph First (j) of § 3 of the Railway Labor Act, 45 U.S.C.A. § 153 First •(j) provides: “The several divisions of the Adjustment Board shall give due notice >of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” The court below, in holding the Award void in the absence of notice to the porters, relied heavily upon the decision of •this court in Nord et al. v. Griffin, 7 Cir., 86 F.2d 481, where the question for decision was quite similar to that of the instant •case. The rationale of the decision is that .an" } ]

[ { "docid": "23339482", "title": "", "text": "member McGill), who along with the other labor members of the Board “made every effort to obtain an award- reinstating the plaintiff to the employ of the carrier”, admitted in their appeal brief and in oral argument that appellant was not deprived of due process at the hearing before the National Railroad Adjustment Board. . 45 U.S.C. § 153 First (i). . 45 U.S.C. § 152 First and Second. . 45 U.S.C. § 152 Sixth. . For the legislative history of the Railway Labor Act, see, e. g., Union Pacific R. Co. v. Price, 360 U.S. 601, 608-614, 79 S.Ct. 1351 (1959); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 35-39, 77 S.Ct. 635 (1957); Hearings before House Committee on Interstate and Foreign Commerce on H.R. 7650, 73d Cong., 2d Sess. (1934); Hearings before Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess. (1934); Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L.J. 567 (1937). . The only fully litigated constitutional issue appears to be the right to counsel, the courts repeatedly having held that an employee is not constitutionally so protected at the initial hearing on company property. D’Elia v. New York, New Haven & Hartford R. Co., 230 F.Supp. 912 (D. Conn.1964); D’Amico v. Pennsylvania Railroad Co., 191 F.Supp. 160 (S.D.N.Y. 1961); Butler v. Thompson, 192 F.2d 831 (8th Cir. 1951); Broady v. Illinois Cent. R. Co., 191 F.2d 73 (7th Cir. 1951). cert. den. 342 U.S. 897, 72 S.Ct. 231, 96 L.Ed. 672 (1951); Brooks v. Chicago, R. I. & P. R. Co., 177 F.2d 385 (8th Cir. 1949). . “The provisions of the Railway Labor Act * * * neither compel the employer to enter into any agreement, nor preclude it from entering into any contract with individual employees. They do not ‘interfere with the normal exercise of the right of the carrier to select its employees or to discharge them.’ ” Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 559, 57 S.Ct. 592, 605, 81 L.Ed. 789 (1937). ." }, { "docid": "15955684", "title": "", "text": "cross-examine witnesses, make an argument in their behalf, or otherwise participate in said hearing. The evidence clearly supports the foregoing findings of the trial court. In fact the Board makes no denial of the practice. Nevertheless the statute places upon the Board the duty of giving due notice of all hearings “to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” 45 U.S.C.A. § 153, first (j). It is well established that an award made by the Board in the absence of due notice to the involved parties is void and that its enforcement may be enjoined for that reason. Nord v. Griffin, 7 Cir., 86 F.2d 481, certiorari denied 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 171 F.2d 594, certiorari denied, Shepherd v. Hunter, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 188 F.2d 294, cer-tiorari denied Hunter v. Shepherd, 342 U.S. 819, 72 S.Ct. 36, 96 L.Ed. 619, rehearing denied, 342 U.S. 889, 72 S.Ct. 172, 96 L.Ed. 667; Missouri-Kansas-Texas R. Co. v. Brotherhood of R. & S. S. C., 7 Cir., 188 F.2d 302; Illinois Central Railroad Co. v. Whitehouse, 7 Cir., 212 F.2d 22. All of these decisions were by this court. In previous opinions we have commented on the reluctance, or indeed the unwillingness, of the Board to give notice to all “employees involved” in disputes submitted to it. In the second Hunter case we said, 188 F.2d 294, 300: “In spite of adverse court rulings the Adjustment Board apparently persists in the practice of giving notice only to the named parties to a proceeding. In many cases such a notice is insufficient.” In the Illinois Central case we said, 212 F.2d 22, 29: “The point is that the Board must accord the opportunity to be heard. When that has been done, the beneficiary of the right may exercise it or not, as he (or it) sees fit. It is difficult to understand" }, { "docid": "23339460", "title": "", "text": "83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). Appellant, therefore, cannot come before this or the district court complaining that the award of the Railroad Adjustment Board was based on insufficient evidence or that the Board incorrectly interpreted or wrongfully applied a provision of a collective bargaining agreement. Virtually acknowledging this general principle of law, appellant has sought refuge in an apparent exception thereto, contending that when the National Railroad Adjustment Board violates an employee’s constitutional rights by affording him less than due process, the employee may collaterally attack the award of the Board in an appropriate federal district court. The cases to this end, however, uniformly state that denial of due process by some conduct of the National Railroad Adjustment Board in making the award invests the district court with jurisdiction under the Railway Labor Act to review the award when it would not otherwise have the power to do so. D’Elia v. New York, New Haven & Hartford R. Co., 230 F.Supp. 912 (D. Conn.1964), aff’d 338 F.2d 701 (2d Cir. 1964); Hornsby v. Dobard, 291 F.2d 483 (5th Cir. 1961); Ellerd v. Southern Pacific Railroad Co., 241 F.2d 541 (7th Cir. 1957); Barnett v. Pennsylvania-Reading Seashore Lines, 245 F.2d 579. (3d Cir. 1957); Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527 (8th Cir. 1950); Edwards v. Capital Airlines, Inc., 84 U.S.App.D.C. 346, 176 F.2d 755 (1949). As the Second Circuit said in the appeal of D’Elia case, supra, 338 F.2d at 702: “The initial hearing in D’Elia’s case was held by a representative of the employer railroad. This is the procedure provided in the collective agreement between the railroad and D’Elia’s union and it is the procedure contemplated by the Railway Labor Act. See Subsection First (i) of Section 3, 45 U.S.C. § 153. Under the Act, D’Elia was entitled to a completely impartial hearing only when the case reached" }, { "docid": "4482641", "title": "", "text": "cannot be expected to give notice to anyone who acquired an interest at a later date. . As a matter of practice in three of the four divisions (including the 3d) notice has been given only to the labor organization which filed the claim and the carrier against whom it was filed. When the question of giving notice to individual employees has come before these divisions the union members have voted against it and the carrier members in favor of it, the result being a deadlock. The question has been regarded as procedural, thus has not been referred to referees. The union members’ position on this and related questions (filing of claims by individuals, intervention by individuals) has been that individuals are not proper parties before the Board. Their theory has been that the contracts upon which the claims before the Board are based are contracts between the unions and the carriers, that the Board members are selected and paid by these organizations, that the proceedings before the Adjustment Board are part of the collective bargaining system, and that therefore individuals have no place there. See Jones at 20-23, 55, 343-345; Sen. Doc. No. 8 at 188, Sen. Doc. No. 10 at 7-10, supra note 6. . Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 1950, 181 F.2d 527, certiorari denied, 1950, 340 U.S. 823, 71 S.Ct. 57, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 193; Hunter v. Atchison, T. & S. F. R. Co., 7 Cir., 1948, 171 F.2d 594, certiorari denied sub nom. Shepherd v. Hunter, 1949, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481, certiorari denied, 1937, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879. . See Jones, note 6 supra, at 271, 313-316. . See Railroad Yardmasters of North America, Inc., v. Indiana Harbor Belt R. Co., 7 Cir., 1948, 166 F.2d 326, 331. . Nord v. Griffin, note 16 supra; Estes v. Union Terminal Co., supra. . Brotherhood of Railroad Trainmen v. Templeton, supra; Hunter v. Atchison, T. & S. F. R. Co.," }, { "docid": "23010715", "title": "", "text": "v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Utah Fuel Co. v. Coal Comm’n, 306 U. S. 56. Reversed. Mr. Justice Reed, Mr. Justice Douglas and Mr. Justice Minton dissent. Mr. Justice Harlan took no part in the consideration or decision of this case. The individual members of the Board also filed two diametrically opposite answers to the complaint. The five labor members objected to the grant of a preliminary injunction on grounds similar to those put forth by Telegraphers; the five carrier members generally agreed with the position of Railroad and supported the request for relief. E. g., compare Award No. 2253 (3d Div., Aug. 10, 1943, H. Nathan Swaim, Referee) with Award No. 5432 (3d Div., Sept. 6, 1951, Jay S. Parker, Referee). See, e. g., Nord v. Griffin, 86 F. 2d 481 (C. A. 7th Cir. 1936); Estes v. Union Terminal Co., 89 F. 2d 768 (C. A. 5th Cir. 1937); Brotherhood of Railroad Trainmen v. Templeton, 181 F. 2d 527 (C. A. 8th Cir. 1950); Kirby v. Pennsylvania R. Co., 188 F. 2d 793 (C. A. 3d Cir. 1951); but cf. Order of Railroad Telegraphers v. New Orleans, T. & M. R. Co., 156 F. 2d 1 (C. A. 8th Cir. 1946)." }, { "docid": "23339461", "title": "", "text": "the award when it would not otherwise have the power to do so. D’Elia v. New York, New Haven & Hartford R. Co., 230 F.Supp. 912 (D. Conn.1964), aff’d 338 F.2d 701 (2d Cir. 1964); Hornsby v. Dobard, 291 F.2d 483 (5th Cir. 1961); Ellerd v. Southern Pacific Railroad Co., 241 F.2d 541 (7th Cir. 1957); Barnett v. Pennsylvania-Reading Seashore Lines, 245 F.2d 579. (3d Cir. 1957); Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527 (8th Cir. 1950); Edwards v. Capital Airlines, Inc., 84 U.S.App.D.C. 346, 176 F.2d 755 (1949). As the Second Circuit said in the appeal of D’Elia case, supra, 338 F.2d at 702: “The initial hearing in D’Elia’s case was held by a representative of the employer railroad. This is the procedure provided in the collective agreement between the railroad and D’Elia’s union and it is the procedure contemplated by the Railway Labor Act. See Subsection First (i) of Section 3, 45 U.S.C. § 153. Under the Act, D’Elia was entitled to a completely impartial hearing only when the case reached the referee designated to sit with the Board. As long as the final hearing officer was impartial the requirements of due process were satisfied.” This line of cases, therefore, is inapposite to the instant case wherein the only instance of failure to afford the employee due process occurred during the initial hearing on railroad property rather than during any proceeding before the Adjustment Board. The provisions of the Railway Labor Act govern neither the procedure by which a carrier may discharge its employees nor the conduct of an investigation hearing on railroad property. It is true, of course, that the Act contemplates that disputes “growing out of grievances or out of the interpretation or application of agreements” shall, prior to re-feral to the Adjustment Board, “be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes * * *.” In fact, Subsection First and Second of Section 2 of the Act prescribe it to be the duty of both carriers and employees “to exert" }, { "docid": "11430463", "title": "", "text": "Anchorage. The controversy now before the Court therefore involves conflicting claims of the Clerks and the Telegraphers to the same clerical work. The Clerks are involved in the dispute as that term is used in Section 3, First (j) of the Railway Labor Act. “2. Even if it be held that Award No. 4734 now under consideration does not involve a jurisdictional controversy, but merely the interpretation of a labor agreement between the Telegraphers and the Carrier, the Clerks are nevertheless involved in the dispute for as stated in Order of Railway Conductors v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 325, 90 L.Ed. 318, 323: “ ‘ * * interpretation of these contracts involves more than a mere construction of a “ ‘document’ ” in terms of ordinary meaning of words and their position. * * * For O.R.C.’s agreement with the railroad must be read in the light of others between the railroad and B.R.T. And since all parties seek to support their particular interpretation of these agreements by evidence as to usage, practice and custom that too must be taken into account and properly understood.’ “3. The Railway Labor Act specifically provides that ‘the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.’ Title 45 U.S.C.A. § 153, First (j). The Board did not comply with this requirement of the Act, and it has been stipulated in this case that it was not the policy or practice of the Third Division of the Adjustment Board to permit persons or organizations whose relationship to the controversy was like that of the Clerks’ organization or the employes represented by it to intervene or to notify them of the pendency or hearing of such proceedings before the Board. Neither formal notice nor actual knowledge, without opportunity to be heard, fulfills the purpose of the statute. Award No. 4734 is therefore unenforceable for the reasons more fully stated in Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d" }, { "docid": "3553929", "title": "", "text": "particular, that the courts should review these orders to assure that the Board has not failed to comply with the positive requirements of the Act. Thus, even though the Board has passed on the notice issue, we are not precluded by § 153 First (q) from determining whether proper notice was given. The district court erred in holding that it lacked authority to review the propriety of the Board’s notice in this case. Nor are we persuaded by the Board’s suggestion that because the Board’s Second Division sits in Chicago, Illinois the Seventh Circuit’s law as expressed in O'Neill governs this case. This type of argument, that a court should apply some body of law other than its own because of the location of persons, entities or events, is, in essence, a choice of law argument. There are, however, no choice of law rules for inter circuit conflicts. There is, instead, the familiar rule that a panel of this court may not overrule a previous panel’s decision. Only on en banc court may overrule a circuit precedent, absent an intervening Supreme Court decision. See Timmreck v. United States, 577 F.2d 372, 376 n. 15 (6th Cir.1978), rev’d on other grounds, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). The relative merits of Cole and O’Neill are not open to debate in this case. We are bound to apply Cole. It is “well established that an award made by the Board in the absence of due notice to the involved parties is void.” Attain v. Tummon, 212 F.2d 32, 35 (7th Cir.1954). See also Order of Railroad Telegraphers v. New Orleans, Texas & Mexico Railway, 229 F.2d 59 (8th Cir.), cert. denied, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861 (1956); Kirby v. Pennsylvania R. Co., 188 F.2d 793, 799 (3d Cir.1951). Since the notice given in this case was insufficient under the standards of Cole, the Board’s award of reinstatement and restoration of seniority rights without backpay is without legal effect. The judgment of the district court is REVERSED. The case is REMANDED to the district court" }, { "docid": "11430457", "title": "", "text": "and Award 4734 was entered without BRS being a party to the hearing: * * The Court observed that this Court in Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527, in dealing with an award where a somewhat similar situation to the one presented here was involved, approved conclusions of law by the District Court, loc. cit. 534, as follows: “ ‘That the aforesaid awards of the National Railroad Adjustment Board, First Division, are illegal and void, in that they were rendered by said Board, in violation of Section 3 (j), Title 45 U.S.C.A. § 153(j), of the Railway Labor Act, because plaintiff and the members of the class whom he represents involved in said proceedings, were given no notice thereof, or afforded an opportunity to be heard therein, either in person or by counsel. “ ‘Compliance by the Santa Fe with the provisions of said awards deprives plaintiff and the class he represents, of property rights without due process of law, in violation of the Fifth Amendment to the Constitution of the United States.’ ” The trial Court also noted that this Court in approving the District Court’s conclusions of law referred to above cites [and indicates that it is in accord with] Hunter v. Atchison, Topeka and Santa Fe Railway, 171 F.2d 594, wherein the Court of Appeals for the Seventh Circuit held a similarly obtained award to be void. The case of Missouri, Kansas and Texas R. Co. v. Brotherhood of Ry. & S. S. Clerks, 7 Cir., 188 F.2d 302, 305, was also cited. The Court there was concerned with an appeal from an injunction issued by the District Court temporarily enjoining the Clerks from prosecuting any suit to enforce awards entered in their favor by the National Railroad Adjustment Board. The carrier brought the action because awards had been entered in favor of both the Clerks and the Telegraphers covering the same jobs in the interpretation of their respective contracts. The trial Court quoted from the Seventh Circuit opinion upholding the granting of temporary injunction as follows: “ ‘The dilemma here posed results in" }, { "docid": "11430464", "title": "", "text": "usage, practice and custom that too must be taken into account and properly understood.’ “3. The Railway Labor Act specifically provides that ‘the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.’ Title 45 U.S.C.A. § 153, First (j). The Board did not comply with this requirement of the Act, and it has been stipulated in this case that it was not the policy or practice of the Third Division of the Adjustment Board to permit persons or organizations whose relationship to the controversy was like that of the Clerks’ organization or the employes represented by it to intervene or to notify them of the pendency or hearing of such proceedings before the Board. Neither formal notice nor actual knowledge, without opportunity to be heard, fulfills the purpose of the statute. Award No. 4734 is therefore unenforceable for the reasons more fully stated in Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d 527; Hunter v. Atchison, Topeka & Santa Fe Railway, 7 Cir., 171 F.2d 594; Missouri-Kansas-Texas R. Co. v. Brotherhood of Ry. & S. S. Clerks, 7 Cir., 188 F.2d 302; Illinois Central R. Co. v. Whitehouse, 7 Cir., 212 F.2d 22; and Allain v. Tummon, 7 Cir., 212 F.2d 32. “4. In view of the ruling on defendant’s ‘Second Affirmative Defense’, the Court withholds ruling upon the other questions involved.” It is contended for the Telegraphers, appellant in this appeal, that the decision of the District Court was erroneous in that it was contrary to the decision of this Court in Order of Railroad Telegraphers v. New Orleans, T. & M. R. Co., 156 F.2d 1, and that it failed to follow the “clear guide to decision” presented by the Supreme Court in Whitehouse v. Illinois Central R. Co., 1955, 349 U.S. 366, 75 S.Ct. 845. It is argued that our decision in Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d 527, may be distinguished and that the principles established by this Court" }, { "docid": "11430465", "title": "", "text": "527; Hunter v. Atchison, Topeka & Santa Fe Railway, 7 Cir., 171 F.2d 594; Missouri-Kansas-Texas R. Co. v. Brotherhood of Ry. & S. S. Clerks, 7 Cir., 188 F.2d 302; Illinois Central R. Co. v. Whitehouse, 7 Cir., 212 F.2d 22; and Allain v. Tummon, 7 Cir., 212 F.2d 32. “4. In view of the ruling on defendant’s ‘Second Affirmative Defense’, the Court withholds ruling upon the other questions involved.” It is contended for the Telegraphers, appellant in this appeal, that the decision of the District Court was erroneous in that it was contrary to the decision of this Court in Order of Railroad Telegraphers v. New Orleans, T. & M. R. Co., 156 F.2d 1, and that it failed to follow the “clear guide to decision” presented by the Supreme Court in Whitehouse v. Illinois Central R. Co., 1955, 349 U.S. 366, 75 S.Ct. 845. It is argued that our decision in Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d 527, may be distinguished and that the principles established by this Court in its earlier decision in the New Orleans, T. & M. case “are in accord with the intent of Congress * * * and those adopted by the Court of Appeals for the Seventh Circuit are contrary thereto.” The distinction which the appellant here seeks to draw between this case and the Templeton case is that in this case both the Clerks and the Telegraphers have “contracts or agreements” with the railroad whereas Templeton’s class of employees held their jobs at the will of the railroad which employed them and the railroad was wrongfully coerced by the Brotherhood of Railroad Trainmen and the awards obtained by them. But that difference had no part in determining the decision of the Templeton case either in the trial court or in this court. We found in the Templeton case that the award obtained by the Trainmen purporting to take away the jobs of the messenger-baggagemen was illegal and void for want of opportunity afforded the baggagemen to be heard and we think that the same defect has been" }, { "docid": "4482642", "title": "", "text": "bargaining system, and that therefore individuals have no place there. See Jones at 20-23, 55, 343-345; Sen. Doc. No. 8 at 188, Sen. Doc. No. 10 at 7-10, supra note 6. . Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 1950, 181 F.2d 527, certiorari denied, 1950, 340 U.S. 823, 71 S.Ct. 57, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 193; Hunter v. Atchison, T. & S. F. R. Co., 7 Cir., 1948, 171 F.2d 594, certiorari denied sub nom. Shepherd v. Hunter, 1949, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481, certiorari denied, 1937, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879. . See Jones, note 6 supra, at 271, 313-316. . See Railroad Yardmasters of North America, Inc., v. Indiana Harbor Belt R. Co., 7 Cir., 1948, 166 F.2d 326, 331. . Nord v. Griffin, note 16 supra; Estes v. Union Terminal Co., supra. . Brotherhood of Railroad Trainmen v. Templeton, supra; Hunter v. Atchison, T. & S. F. R. Co., supra. . Truax v. Raich, 1915, 239 U.S. 33, 38, 36 S.Ct. 7, 60 L.Ed. 131; Hunter v. Atchison, T. & S. F. R. Co., supra, 171 F.2d at page 597; Restatement, Torts §§ 809-812 (1939)." }, { "docid": "23010714", "title": "", "text": "has already been delayed for more than two years. It may be true, as the Court of Appeals observed, that this action must be viewed as “in the nature of mandamus” because mere injunctive relief would not prevent most of the injuries which Railroad seeks to avoid. But mandamus is itself governed by equitable considerations and is to be granted only in the exercise of sound discretion. We hold, in conformity with past decisions, that the injuries are too speculative to warrant resort to extraordinary remedies. See Eccles v. People’s Bank, 333 U. S. 426; Public Service Comm’n v. Wycoff Co., 344 U. S. 237; United States ex rel. Chicago G. W. R. Co. v. Interstate Commerce Commission, 294 U. S. 50. Moreover, among the injuries asserted by Railroad, only the possibility that it is being put to needless expense incident to the pending Board proceeding will necessarily be involved if judicial relief is denied at this stage of the administrative process. Such expense is inadequate basis for intervention whether by mandamus or injunction. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Utah Fuel Co. v. Coal Comm’n, 306 U. S. 56. Reversed. Mr. Justice Reed, Mr. Justice Douglas and Mr. Justice Minton dissent. Mr. Justice Harlan took no part in the consideration or decision of this case. The individual members of the Board also filed two diametrically opposite answers to the complaint. The five labor members objected to the grant of a preliminary injunction on grounds similar to those put forth by Telegraphers; the five carrier members generally agreed with the position of Railroad and supported the request for relief. E. g., compare Award No. 2253 (3d Div., Aug. 10, 1943, H. Nathan Swaim, Referee) with Award No. 5432 (3d Div., Sept. 6, 1951, Jay S. Parker, Referee). See, e. g., Nord v. Griffin, 86 F. 2d 481 (C. A. 7th Cir. 1936); Estes v. Union Terminal Co., 89 F. 2d 768 (C. A. 5th Cir. 1937); Brotherhood of Railroad Trainmen v. Templeton, 181 F. 2d 527 (C. A. 8th Cir. 1950); Kirby v. Pennsylvania R. Co., 188" }, { "docid": "11430456", "title": "", "text": "plaintiff for application to the Railroad Adjustment Board for interpretation of the plaintiff’s agreement. The plaintiff chose not to file an application with the Board and its suit was dismissed with prejudice. Subsequent to the dismissal of the suit after the members of BRS had taken over the work in accordance with Award 2254, which the plaintiff’s members formerly performed, the plaintiff sought interpretation of its contract by the Railroad Adjustment Board which resulted in the award and order 4734, sustaining the plaintiff’s interpretation of its contract awarding its members the work, which award and order is sought to be enforced in this suit. * * * “Simply stated, the BRS [Clerks] contract with the carrier and the plaintiff’s contract with the carrier overlapped. Both contracts proposed to cover the same work at Anchorage, Louisiana, and the National Railroad Adjustment Board has sustained both BRS and the plaintiff in their interpretation of their respective contracts with respect to the work in question. Award 2254 was entered without the plaintiff being a party to the hearing and Award 4734 was entered without BRS being a party to the hearing: * * The Court observed that this Court in Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527, in dealing with an award where a somewhat similar situation to the one presented here was involved, approved conclusions of law by the District Court, loc. cit. 534, as follows: “ ‘That the aforesaid awards of the National Railroad Adjustment Board, First Division, are illegal and void, in that they were rendered by said Board, in violation of Section 3 (j), Title 45 U.S.C.A. § 153(j), of the Railway Labor Act, because plaintiff and the members of the class whom he represents involved in said proceedings, were given no notice thereof, or afforded an opportunity to be heard therein, either in person or by counsel. “ ‘Compliance by the Santa Fe with the provisions of said awards deprives plaintiff and the class he represents, of property rights without due process of law, in violation of the Fifth Amendment to the Constitution of the United" }, { "docid": "8375546", "title": "", "text": "may include in their ticket notice the parenthetical phrase, “($16.58 per kilo)” after the phrase, “$7.50 per pound,” in referring to the baggage liability limitation for most international travel. Before the regulation was promulgated, all affected carriers were given opportunity to submit their views concerning the proposed regulation. Not a single carrier denied the need for adequate notice to passengers of limitations on liability; most of the comments merely questioned how effective the instant regulation would be. Only Lufthansa challenged the legality of the regulation. Lufthansa asked the Board to stay its order pending the outcome of this petition for review. The Board declined to do so and this court too denied a petition for stay on February 29, 1972. Thus the regulation took effect on March 1,1972. II. JURISDICTION Cl] A most difficult preliminary question that must be answered is whether this court has jurisdiction over the instant case. Section 1006(a) of the Act, 49 U.S.C. § 1486(a), confers jurisdiction on this appellate court to hear appeals from any final order issued by the Civil Aeronautics Board. But under an early and often cited decision, this court held that it had no jurisdiction over direct appeals from the promulgation of agency regulations where there had not been an evidentiary record established in a quasi judicial proceeding before the agency, United Gas Pipe Line Co. v. Federal Power Comm’n, 86 U.S. App.D.C. 314, 181 F.2d 796, cert. denied, 340 U.S. 827, 71 S.Ct. 63, 95 L.Ed. 607 (1950) (concerning regulatory authority under Natural Gas Act, 15 U.S.C. § 717r(b)); see also Arrow Airways v. Civil Aeronautics Board, 87 U.S.App.D.C. 71, 182 F.2d 705 (1950), cert. denied, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1951). The United Gas decision was followed in many subsequent cases, it being held that agency regulations promulgated without a prior evidentiary hearing by the agency are directly reviewable only in a district court. But the continuing vitality of United Gas has recently been called into question by this court, and has not been followed in situations where evidence has been assembled before the agency" }, { "docid": "16260547", "title": "", "text": "of a collective bargaining agreement. We have held, however, that § 3 First (i) by its own terms applies only to “disputes between an employee or group of employees and a carrier or carriers.” Conley v. Gibson, 355 U.S. 41, 44 [78 S.Ct. 99, 101, 2 L.Ed.2d 80] (1957). In Conley, as in the present case, the suit was one brought by the employees against their own union, claiming breach of the duty of fair representations, and we held that the jurisdiction of the federal courts was clear. In the present case, of course, the petitioners sought relief not only against their union but also against the railroad, and it might at one time have been thought that the jurisdiction of the Railroad Adjustment Board remains exclusive in a fair representation case, to the extent that relief is sought against the railroad for alleged discriminatory performance of an agreement validly entered into and lawful in its terms. See, e. g., Hayes v. Union Pacific R. Co., 184 F.2d 337 (C.A. 9th Cir. 1950), cert. denied, 340 U.S. 942 [71 S.Ct. 506, 95 L.Ed. 680] (1951). This view, however, was squarely rejected in the Conley case, where we said, “[F]or the reasons set forth in the text we believe [Hayes, supra] was decided incorrectly.” 355 U.S., at 44, n. 4 [78 S.Ct. at 101 n. 4.] In this situation no meaningful distinction can be drawn between discriminatory action in negotiating the terms of an agreement and discriminatory enforcement of terms that are fair on their face. Moreover, although the employer is made a party to insure complete and meaningful relief, it still remains true that in essence the “dispute” is one between some employees on the one hand and the union and management together on the other, not one “between an employee or group of employees and a carrier or carriers.” Finally, the Railroad Adjustment Board has no power to order the kind of relief necessary even with respect to the railroad alone, in order to end entirely abuses of the sort alleged here. The federal courts may therefore properly exercise" }, { "docid": "15955683", "title": "", "text": "obtain for the dining car stewards the compensation then being paid by the carrier to the plaintiffs, had the necessary and practical effect of obtaining the lounge and tavern car attendants’ jobs for said stewards. The court found that no notice of the claim of the Brotherhood was given to the plaintiffs or their union, nor did they have any knowledge thereof prior to the award. The court further found that the Board has followed a custom and practice of limiting notice of claims to the railroad brotherhood that files a claim and to the railroad against which the claim is filed, and that notice is never given to the individuals whose employment rights may be adversely affected if the claim is granted; that if plaintiffs or the minority union representing them had otherwise obtained knowledge of the pendency of said claim before said Board, and, as a result thereof, had appeared before said Board and endeavored to participate in said hearing, they would not have been permitted to file a written submission, offer testimony, cross-examine witnesses, make an argument in their behalf, or otherwise participate in said hearing. The evidence clearly supports the foregoing findings of the trial court. In fact the Board makes no denial of the practice. Nevertheless the statute places upon the Board the duty of giving due notice of all hearings “to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” 45 U.S.C.A. § 153, first (j). It is well established that an award made by the Board in the absence of due notice to the involved parties is void and that its enforcement may be enjoined for that reason. Nord v. Griffin, 7 Cir., 86 F.2d 481, certiorari denied 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 171 F.2d 594, certiorari denied, Shepherd v. Hunter, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 188 F.2d 294, cer-tiorari denied Hunter v. Shepherd, 342 U.S." }, { "docid": "2360058", "title": "", "text": "Again in Hargis v. Wabash R. Co., 7 Cir., 1947, . 163 F.2d 608, 611, one judge suggested the review provisions of the Administrative Procedure Act were applicable. We think the review provisions of that Act are inapplicable for two reasons. (1) Section 10(1), 5 U.S.C.A. § 1009(1), specifically excepts instances such as this where the statute precludes judicial review. (2) The provisions apply to an “agency” which Section 2(a) (1), 5 U.S. C.A. § 1001(a) (1), defines to exclude “agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them.” Cf. Kirkland v. Atlantic Coast Line R. Co., 83 U.S.App.D.C. 205, 167 F.2d 529, certiorari denied, 1948, 335 U.S. 843, 69 S.Ct. 65, 93 L.Ed. 393. . Elgin, J. & E. Ry. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1946, adhered 327 U.S. 661, 66 S. Ct. 721, 90 L.Ed. 928 (union before Board not authorized to bind absent employees) ; Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d 527, certiorari denied 340 U.S. 823, 71 S.Ct. 57, 95 L.Ed. 605, 1950, rehearing denied 340 U.S. 885, 71 S.Ct. 193, 95 L.Ed. 643 (failure to give notice); Edwards v. Capital Airlines, 84 U.S.App. D.C. 346, 176 F.2d 755, certiorari denied, 1949, 338 U.S. 885, 70 S.Ct. 186, 94 L.Ed. 543 (conflict of interest between Board members and employees)." }, { "docid": "22123504", "title": "", "text": "it separately below.) Since Central did not ask for an oral hearing before the original award appeared, the Board concluded that oral argument had been waived. The general rule, of course, is that “ [p]rocedural objections to the action of an administrative agency or trial court must be timely made to give the tribunal an opportunity to correct the error, if error there be; such contentions cannot first be made on appeal”. Brotherhood of Railroad Trainmen v. Chicago, M., St. P. & P. R. Co., 1967, 127 U.S.App.D.C. 58, 380 F.2d 605, 608. The railroad argues that it made no request because to do so would have been futile in light of the First Division’s long-standing practice to deny an oral hearing before the referee. The law, it argues, does not require parties to do a futile thing. The argument might have more force if Central had requested a hearing before the ten regular members of the First Division. Then it would be more plausible to suppose that the railroad had failed to ask for a hearing before the referee only because it knew that that would be useless. In fact, however, Central did not ask to be heard by the regular members who, for all the carrier knew at the time, were about to make the final decision. That makes it harder for the carrier now to claim that futility explains its silence below. Moreover, in cases where the failure to raise a point is excused on the ground of futility, the futility must be clear, as for example when a lower court is obviously bound by the decision of a higher court. See, e. g., United States v. Manfredonia, 2 Cir.1968, 391 F.2d 229, 230. Another clear sign of futility would be the recent rejection by the same tribunal of the same argument, as was the case in the decision of International. Ass’n of Machinists v. Hayes Corp., 5 Cir.1961, 296 F.2d 238, cited by the railroad here. Central does not make an adequate showing of futility in this case. We hold, therefore, that it waived any rights" }, { "docid": "3553930", "title": "", "text": "circuit precedent, absent an intervening Supreme Court decision. See Timmreck v. United States, 577 F.2d 372, 376 n. 15 (6th Cir.1978), rev’d on other grounds, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). The relative merits of Cole and O’Neill are not open to debate in this case. We are bound to apply Cole. It is “well established that an award made by the Board in the absence of due notice to the involved parties is void.” Attain v. Tummon, 212 F.2d 32, 35 (7th Cir.1954). See also Order of Railroad Telegraphers v. New Orleans, Texas & Mexico Railway, 229 F.2d 59 (8th Cir.), cert. denied, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861 (1956); Kirby v. Pennsylvania R. Co., 188 F.2d 793, 799 (3d Cir.1951). Since the notice given in this case was insufficient under the standards of Cole, the Board’s award of reinstatement and restoration of seniority rights without backpay is without legal effect. The judgment of the district court is REVERSED. The case is REMANDED to the district court with instructions that Award No. 7437, Docket No. 7329 of the Second Division of the National Railroad Adjustment Board be set aside. . A second proceeding before the Board, involving Illinois Central's compliance with the reinstatement order, is not involved in this appeal. . Cole explained what type of knowledge of the Board proceedings is necessary to meet the \"actual notice\" standard. Actual notice for this purpose is notice of the hearing for a sufficient period prior thereto to permit the employee to consult with union officials and relay such information as he possesses which might allow the union to more effectively present his claim. See 541 F.2d at 534. The term “actual notice\" refers, of course, to the employee's knowledge of the proceedings obtained through informal means." } ]

[ { "docid": "22088550", "title": "", "text": "with the specific statutory right of appeal, indicate to us a strong Congressional policy to afford meticulous procedural protections to applicants who claim to be conscientious objectors, and indeed to grant deferments in appropriate cases. Implementation of that policy requires that any individual who raises his conscientious objector claim promptly after it matures — even if this occurs after an induction notice is sent but before actual induction — be entitled to have his application considered by the Local Board. In light of this, the Local Board must first determine when an applicant’s beliefs matured. If the Board properly concludes that the claim existed before the notice was sent, the classification may not be reopened. If the Board finds, however, that the applicant’s beliefs ripened only after he received his notice, and that his beliefs qualify him for classification as a conscientious objector then a change in status would have occurred “resulting from circumstances over which the registrant had no control,” and he would be entitled to be reclassified by the Local Board. While action by the Local Boards in accordance with this interpretation of the Regulation should avoid difficulty in the future, it remains to apply these principles to Gearey’s case. The difficulty arises from the form of the Board’s finding. If the Board had found that Gearey’s beliefs after the induction notice were no different than before, that would have sufficed, provided the judge found a rational basis for it. Again, if the Board had said clearly that in its view Gearey never had been and was not now “a genuine c. o.,” that too would have sufficed, subject to the same proviso, since there could not be “a change in the registrant’s status resulting from circumstances over which the registrant had no control” if there had been no change at all. The Board’s determination as to the sincerity of the claim, while ordinarily subject to an appeal with the safeguards of § 6(j), would not be in these circumstances because of the applicability of § 1625.2 to conscientious objector claims. While the Board’s finding that Gearey was" } ]

[ { "docid": "23054706", "title": "", "text": "refer any such claim to the Department of Justice for inquiry and hearing. * * * ” The trial court apparently took the view that the exemption privilege granted by Section 456(j) was subject to and conditioned upon the procedural requirements of Section 1625.2, C.F.R., Title 32, which pertinently provides that “The local board may reopen and consider anew the classification of a registrant (1) upon the written request of the registrant * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252), unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The court reasoned that since the appellant made no written request to his local board to reopen and reconsider his I-A classification until after induction notice had been mailed to him; and since the board had refused, upon consideration, to find that there had been a change in his status from circumstances over which he had no control, his refusal to submit to induction in accordance with the induction notice was in violation of Section 462(a), Title 50 U.S.C.A.Appendix. Appellant does not claim to be entitled to any deferred or exempt status when he registered. And see §§ 1622.10, 1623.2, C.F.R., Title 32. But, four years after his registration and I-A classification, and on August 28, 1956, he wrote to the draft board seeking information concerning conscientious objections, stating that he was a pacifist and would directly support an army only if forced to do so. By coincidence, on the same day his letter was mailed, his local board mailed to him an order to report for induction on September 13, 1956. On August 30, the Clerk of his local draft board answered appellant’s inquiry, stating that inasmuch as the appellant did not claim conscientious objector classification prior to the date the order for induction was mailed, the order to report for induction on September 13 would" }, { "docid": "890306", "title": "", "text": "OPINION OF THE COURT VAN DUSEN, Circuit Judge. This appeal challenges a criminal conviction (the district court judgment and commitment is dated January 25, 1972), after trial to the court, for refusal to submit to induction in accordance with a Local Board order as required by the Military Selective Service Act of 1967, as amended, and the rules and regulations made pursuant thereto, in violation of 50 U.S.C. App. § 462. After the registrant had received an order to report for induction on November 17, 1969, which was mailed on October 23, 1969, he filed an application on Form 150 for classification as a conscientious objector (I-O) in early February 1970, alleging, inter alia, that consideration of his imminent induction in November 1969 made him realize that “I couldn’t bear arms against another person.” His Form 150, as supplemented by his supporting letters, made out a prima facie case for a 1-0 classification. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). After a nonstatutory interview was granted to Ziskowski by the Local Board on February 5, 1970, at which he “advised his feelings crystallized when he received the induction order,” the Board declined to reopen the case and sent him a letter dated 5 February 1970 stating, inter alia: “It is the determination of the board that there has been no change in your status resulting from circumstances over which you had no control. Your classification has not been reopened.” 32 C.F.R. § 1625.2, governing the reopening of a registrant’s classification after the mailing of an Order to Report for Induction, provides that such reopening shall not occur “unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The language used by the Board in refusing to reopen Ziskowski’s classification is consistent with at least the following reasons: 1. A Board finding that the registrant’s conscientious objector beliefs were not sincere either before or after receipt of his notice of induction on October 23, 1969, so" }, { "docid": "2822116", "title": "", "text": "BREITENSTEIN, Circuit Judge. Defendant-appellant Haifley refused to submit to induction into the armed forces of the United States and on trial to the court without a jury was found guilty of violating 50 U.S.C. App. § 462(a). This defendant has had an abundance of trouble with Selective Service. He registered in March, 1965, and received a student deferment. While in college he was active in the anti-war movement. In October, 1967, he turned in his draft card as part of an anti-war protest. He was later indicted in federal district court and the indictment was dismissed. Upon receipt of information that the defendant was no longer in school, the Board classified him I-A on April 9, 1968. His appeal from this classification was rejected and he was ordered to report for induction but did not do so. He was indicted, tried, and convicted for this offense and the conviction was set aside on technical grounds, D.C., 300 F.Supp. 355. He was then ordered to report for induction on July 24,1969. On July 10, 1969, defendant requested SSS Form 150 for conscientious objectors which was completed and returned. The Board granted a personal appearance and the State Director postponed induction for 10 days so this appearance could be held. On July 25, 1969, defendant appeared before the Board and discussed his claim for classification as a conscientious objector. The records of the Board show the following action taken after the hearing: “The local board determined that there had been no change in the registrant’s status due to circumstances beyond his control; therefore, the local board is without authority to reopen the classification. Mr. Haifley should report for induction as ordered.” Defendant refused to submit to induction and this prosecution followed. Selective Service Regulations provide in pertinent part, 32 CFR § 1625.2, that: “ * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances" }, { "docid": "23585555", "title": "", "text": "military service. On October 11, 1966, the local Board noted appellant’s file: “Reviewed, no change, 3-0” and two days later informed him of its decision not to reopen his classification. Dugdale reported on October 18, 1966, but refused to take the ceremonial step forward signifying induction. He was indicted, found guilty, and sentenced to the custody of the Attorney General for a period of three years. It is from this conviction the appeal is taken. Pursuant to the authority conferred by 50 U.S.C. App. § 460(b) (l), the President has promulgated a regulation dealing with requests to reopen the classification of registrants who have been sent their induction notices: “The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when a registrant was classified which, if true, would justify a change in the registrant’s classification ; * * * provided the classification * * * of a registrant shall not be reopened after the local board has mailed to such registrant an order to report for induction * * * unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” 32 C.F.R. 1625.-2. (Emphasis added.) This regulation clearly limits the instances in which the denial of conscientious objector claims may be appealed when such a claim is made after issuance of an induction notice. Dugdale contends that the Board should have reopened and made a finding as to the date appellant’s belief matured. The argument relies upon the rationale of United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966), which holds that if a registrant’s conscientious objector views mature after notice of induction is sent but before induction, this is such a “change of status” resulting from “circumstances over which [he has] no control” which would qualify him for exemption. We do not necessarily accept the rationale of the Gearey case. See Boyd v." }, { "docid": "21926028", "title": "", "text": "involved habeas corpus and that Scott submitted to induction. But nonetheless the case seems to turn on the issuance of an induction order and 32 CFR Sec. 1625.2 is directed to a request made prior to the issuance of an induction order after the Local Board has mailed a notice to report for induction to the registrant. In this case, as we have already stated, Shomock did not submit to induction. The next case which requires consideration at length is Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), a criminal proceeding. In Ehlert, the question was whether a Selective Service Local Board must reopen the classification of a registrant who claims that his conscientious objection to war “in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date.” Ehlert made no claims to conscientious objector status until after he received his induction notice. However, before the induction date he wrote to his Local Board and requested that he be allowed to present his claims to conscientious objector status. He stated that his conscientious objector views had matured, crystallized only after the induction notice which had made immediate the prospect of military service. The Local Board notified Ehlert that it would not reopen his classification because “the crystallization of his conscientious objection did not constitute the ‘change in the registrant’s status resulting from circumstances over which the registrant had no control.’ ” The Local Board refused to reopen Ehlert’s classification, as did the Board in the case at bar. Ehlert refused to submit to induction; was indicted; trial by jury was waived, and the District Court “holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control” and found the petitioner guilty. The Supreme Court stated that it had granted certiorari to resolve a conflict among the circuits over the interpretation of the Selective Service regulation. 32 CFR Sec. 1625.2. The Supreme Court also stated that a regulation barring post-induction-notice presentation of conscientious objector claims with a proviso that" }, { "docid": "3338326", "title": "", "text": "Local Board was in itself a finding that defendant lacked the prescribed change in status due to ‘circumstances over which the registrant had no control’.” 284 F.Supp at 97. We disagree. The August 9 induction order had been cancelled. Colonel Hope instructed the local board to consider all the evidence relating to Davis’ conscientious objector claim. Such evidence included Selective Service Form 150 and numerous letters from Davis’ associates attesting to his sincerity. The action of the draft board in cancelling the induction order, together with the instructions given the local board by the state director, placed Davis in the same situation as he would be if no draft order had ever been issued. Miller v. United States, 388 F.2d 973, 975 (9th Cir. 1967). The clause of § 1625.2 limiting the power of the board to reopen when there is an outstanding induction order is inapplicable in the present case. Cases relied upon by the government to support the local board’s denial of a reopening, such as Davis v. United States, 374 F.2d 1 (5th Cir. 1967); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966), cert. denied, Lawrence v. United States, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); United States v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966); Keene v. United States, 266 F.2d 378 (10th Cir. 1959), are distinguishable. In each of these cases, the board considered the registrant’s claim for a conscientious objector status in the presence of an outstanding order to report for induction. See also, United States v. Jennison, 402 F.2d 51 (6th Cir. 1968); Du Vernay v. United States, 394 F.2d 979, 981 (5th Cir. 1968), aff’d without opinion by equally divided Court, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969). Some of the cases relied on by the government, such as United States v. Al-Majied Muhammad, supra,, deal with a postponement of an induction order pending preliminary consideration of the registrant’s claim. There is a significant difference between a cancelled induction order and one that is postponed. See generally, United States v. Sandbank, 403 F.2d" }, { "docid": "930034", "title": "", "text": "continued to satisfy the requirements for a II-S classification. 32 C.F.R. §§ 1622.1(c), 1622.25 (d). See Dickinson v. United States, 346 U.S. 389, 395, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Bradley v. United States, 218 F.2d 657, 661 (9th Cir. 1954). IV Appellant filed a conscientious objector claim after the local board had mailed his order to report for induction. The board applied 32 C.F.R. § 1625.2, which provides that after an induction order has been mailed to a registrant, his classification “shall not be reopened * * unless the local board * * * specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The board could not find such a change in appellant’s circumstances and therefore declined to consider the merits of appellant’s claim. Appellant challenges this result on two grounds. First, he notes that, upon receiving appellant’s request for a conscientious objector form, the local board postponed his induction “until further notice.” He contends that such an indefinite postponement automatically cancels the induction order. Consequently, he argues, his conscientious objector claim should have been treated as filed before his induction order was mailed, and should have been considered on its merits without a showing of change in circumstances beyond his control. He relies upon United States v. Lonidier, 427 F.2d 30, 31 (9th Cir. 1970), and Hamilton v. Commanding Officer, 328 F.2d 799, 802 (9th Cir. 1964). The simple answer to appellant’s first argument is that the postponement involved here was not ordered by the local board pursuant to its authority to postpone induction for up to 120 days under section 1632.2(a). The order of postponement recites that it was issued by authority of the state director who, under the same regulation, “may, for good cause, at any time after the issuance of an Order to Report for Induction, * * postpone the induction of a registrant until such time as he may deem advisable * * *” (emphasis added). Appellant’s second argument is that in postponing his induction beyond 60 days the local board" }, { "docid": "12549469", "title": "", "text": "to have them considered by the local board. Kirkpatrick alleges that his draft board should have reopened his file once he submitted his conscientious objector claim by written statement presented to authorities at the time of his induction on June 1, 1970. He contends that this claim constituted a “change in the registrant’s status resulting from circumstances over which the registrant had no control”. 32 CFR § 1625.2. The United States Supreme Court recently held that the local board is not required to consider a claim made after induction notice is received for a classification change to a conscientious objector. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). Regulation 1625.2, according to the Ehlert case, is to be confined to such “objectively identifiable” and “extraneous” circumstances that will prove manageable without placing extra burdens on the Selective Service System, such as injury or death in the family leaving the registrant as the sole surviving son. Under this interpretation, it is proper to conclude that military channels should have been employed here in light of the fact that Kirkpatrick’s claim was made after his induction notice had been received. To hold otherwise would place extra burden on the Selective Service System. Prior to the Ehlert case this court held that the crystalization of beliefs of conscientious objection, occurring after the issuance of an induction order, could constitute a change in status resulting from circumstances over which the registrant had no control. Martinez v. United States, 384 F.2d 50 (10th Cir. 1967), cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968); Keene v. United States, 266 F.2d 378 (10th Cir. 1959). These cases have been vitiated by Ehlert, together with the Second Circuit cases relied upon by the appellant, United States v. Holmes, 426 F.2d 915 (2d Cir. 1970), app. pending; and United States v. Stafford, 389 F.2d 215 (2d Cir. 1968), and other circuit cases which conflict with Ehlert. The Ehlert decision is controlling. There was no need for the local board to reopen Kirkpatrick’s file. Kirkpatrick had the right to pursue" }, { "docid": "23585556", "title": "", "text": "registrant shall not be reopened after the local board has mailed to such registrant an order to report for induction * * * unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” 32 C.F.R. 1625.-2. (Emphasis added.) This regulation clearly limits the instances in which the denial of conscientious objector claims may be appealed when such a claim is made after issuance of an induction notice. Dugdale contends that the Board should have reopened and made a finding as to the date appellant’s belief matured. The argument relies upon the rationale of United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966), which holds that if a registrant’s conscientious objector views mature after notice of induction is sent but before induction, this is such a “change of status” resulting from “circumstances over which [he has] no control” which would qualify him for exemption. We do not necessarily accept the rationale of the Gearey case. See Boyd v. United States, 269 F.2d 607 (9th Cir. 1959), and Parrott v. United States, 370 F.2d 388 (9th Cir. 1966). But even if we did we could not reverse Dugdale’s conviction here. It was incumbent upon Dugdale to submit statements and information which, if true, would be a basis for the change in classification. He was required to show a “change of status” occurring after receipt of the induction notice. He did not do so. On his special form for conscientious objectors, SSS Form 150, he stated that his views had been acquired through his home life, his contacts with acquaintances and friends, and his reading of literature. These views were demonstrated by comments to friends condemning violence and killing, and his request for classification as a conscientious objector. None of his reasons are consistent with any claim that his views matured or changed after receipt of the induction notice. In his transmittal letter with the form, he explained his reasons for late filing to be not any change of status, but rather that he would" }, { "docid": "1750468", "title": "", "text": "Local Board, and January 1965, he received student deferments, never claiming to be a conscientious objector. In mid-February 1965, appellant’s Draft Board was notified by St. Francis College that Gearey was no longer enrolled as a student. When appellant failed to provide proof of attendance, the Board revoked his student deferment (2-S) and reclassified him I-A (available for military service). On April 19, an Order to Report for Induction on May 5 was mailed to appellant. But on April 23 Gearey asked that his I-A classification be reviewed and that the date of induction be postponed. The Board complied by rescheduling his induction for July. It was not until May 24, however, that Gearey for the first time asked the Board to send him the special questionnaire for conscientious objectors (SSS Form #150). After the form was returned to the Board, Gearey was' invited to appear for an interview on July 6. Upon the conclusion of that hearing, Gearey was informed by the Board that it did not believe he was a “genuine c.o.”' and, therefore, a change in his classification was not warranted. Two days later appellant appeared for induction, but refused to take the symbolic step foward when ordered to do so. He was subsequently arrested, tried by Judge Murphy, sitting without a jury, and convicted. II. On his first appeal, Gearey’s principal' argument was that he had been improperly denied the procedural safeguards (including the right to present his case to the Selective Service Appeal Board) contained in § 6(j) of the Universal Military Training and Service Act, 50 U.S.C. App. § 456(j). The government, on the other hand, contended that the Local Board was barred from considering appellant’s claim of conscientious objection by S2 C.F.R. § 1625.2, which provides in part: The local board may reopen and reclassify anew the classification of the registrant * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there" }, { "docid": "21926027", "title": "", "text": "agreed with Judge Friendly’s conclusion that on being presented with “a post-induction-order prima facie conscientious objector claim” the local board may make one of four possible findings, and selected Judge Friendly’s “(4)”, viz., “ . . .no conscientious objection before but conscientious objection after [notice of induction].” We based our decision on the fact that there was nothing in Scott’s file to indicate that his asserted beliefs were not sincerely held and the board made no finding of insincerity. We then pointed out that the petitioner’s file did not afford any basis for us to determine what the Board “did not believe and why” and “. . . [that] the legality of an induction order must, . . . be tested by the facts presented in the registrant’s selective service file. . Since petitioner’s file contains no statement of the reasons for the board’s refusal to reopen his classification, we have no choice but to hold his induction order invalid and direct that the writ be issued.” It will be observed that the Scott proceeding involved habeas corpus and that Scott submitted to induction. But nonetheless the case seems to turn on the issuance of an induction order and 32 CFR Sec. 1625.2 is directed to a request made prior to the issuance of an induction order after the Local Board has mailed a notice to report for induction to the registrant. In this case, as we have already stated, Shomock did not submit to induction. The next case which requires consideration at length is Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), a criminal proceeding. In Ehlert, the question was whether a Selective Service Local Board must reopen the classification of a registrant who claims that his conscientious objection to war “in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date.” Ehlert made no claims to conscientious objector status until after he received his induction notice. However, before the induction date he wrote to his Local Board and requested that he be allowed to" }, { "docid": "3844983", "title": "", "text": "KILKENNY, Circuit Judge: Appellant, on June 14, 1964, was ordered to report for induction and thereafter sought to reopen his classification in order to establish his status as a conscientious objector. Subsequently, he was convicted of failing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. Selective Service Regulations, 32 C.F. R. § 1625.2, in pertinent part, provide: “The classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” In refusing to reopen his classification, the local board advised appellant that its action was based upon its determination that “the information submitted on SSS form 150 was not a change in your status which was beyond your control.” The district court, in denying motion for acquittal, ruled as a matter of law that changes in status involving conscientious objection were not beyond the control of the registrant. That ruling is here asserted as error. Whether the crystallization of a conscientious objection to war can constitute a circumstance over which the registrant has no control is a question upon which the circuits have disagreed. Upon the affirmative side, among others, are United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968), cert. denied 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969); United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), rehearing denied 389 U.S. 1010, 88 S.Ct. 561, 19 L.Ed.2d 611 (1967), and Keene v. United States, 266 F.2d 378 (10th Cir. 1959). Upon the negative side, among others, are United States v. Schoebel, 201 F.2d 31 (7th Cir. 1953), with approving dicta in Davis v. United States, 374 F.2d 1 (5th Cir. 1967); United States v. Jennison, 402 F.2d 51 (6th Cir. 1968), cert. denied 394 U.S. 912, 89 S.Ct. 1024, 22 L.Ed.2d 225 (1969);" }, { "docid": "3811285", "title": "", "text": "a classification is governed by a Selective Service regulation, 32 CFR § 1625.2, which provides: “* * x- the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.” This regulation is a reasonable restriction on the statutory right, 50 U.S.C.App. § 456(j), to avoid military service because of conscientious objection. Keene v. United States, 10 Cir., 266 F.2d 378, 384; see also United States v. Maine, 10 Cir., 417 F.2d 951, 953-954. A crystallization of beliefs in conscientious objection after the Order to Report for Induction has been mailed may constitute a change in status resulting from circumstances beyond a registrant’s control. In such a case the Board has a duty to reopen the classification. United States v. Maine, supra at 953; Martinez v. United States, 10 Cir., 384 F.2d 50, cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d. 166; and Keene v. United States, supra, 266 F.2d at 384. When a claim of conscientious objection is made after the Order to Report, the Board must determine when the registrant’s belief matured. If they matured before the notice was sent, the classification may not be reopened. If they matured after that notice, the question is whether the beliefs qualify him for conscientious objector status. See United States v. Gearey, 2 Cir., 368 F.2d 144, 150, 379 F.2d 915, cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368. Defendant says that the Regulation, § 1625.2 requires a specific finding of no change in status and that none was made because the minutes say simply that the Board “did not wish to reopen.” The minutes are somewhat like a court clerk’s docket sheet. The action is shown by the papers which are within the registrant’s Selective Service file. The Regulations provide, 32 CFR § 1625.4, that when the Board denies a request to reopen" }, { "docid": "7761482", "title": "", "text": "date to report for induction, March 22, 1966. On that date he reported to the induction center and completed all steps preliminary to induction, except one. He was not provided with and therefore did not execute the Security Questionnaire, DD Form No. 98, as required by regulation. Oshatz refused to take the final step of submitting to induction. Appellant argues (1) that the local board’s denial of 1-0 classification was arbitrary and without basis in fact, (2) that the board erred in refusing to reopen the classification upon receipt of SSS Form No. 150, and (3) that the loyalty portion of the induction procedure was improperly conducted. The first two arguments are interrelated and accordingly will be considered together. Oshatz advanced his claim for conscientious objector status for the first time after he received the Order to Report for Induction. Under these circumstances the controlling regulation was 32 C.F.R. § 1625.2 (1968), which provided in part: “The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when a registrant was classified which, if true, would justify a change in the registrant’s classification ; * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an order to report for induction * * * unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” (Emphasis added.) Since only a “change in status” occurring after issuance of the induction order would require the board to reopen a registrant’s classification, it was incumbent upon Oshatz to allege and demonstrate that his views had crystallized after receipt of the induction notice. Briggs v. United States, 397 F.2d 370 (9th Cir. 1968); Dugdale v. United States, 389 F.2d 482 (9th Cir. 1968). This he did not do. On the contrary, without exception, the letters presented to" }, { "docid": "12549468", "title": "", "text": "status over which he had no control, thus requiring that his file with the local board be reopened. 32 CFR § 1625.2. He also alleges that military procedures were not followed after the letters were presented, in compliance with 32 CFR § 1628.2 which requires a medical interview when evidence is submitted which indicates to the local board that the registrant may have a disqualifying condition. The Chief Medical Officer reviewed the letters at the induction center and determined that they did not meet the criteria of Army Regulation 40-501. No prima facie showing was made that Kirkpatrick was unqualified for military service. The letters did not state that Kirkpatrick had a chronic atrophic rhinitis, severe, uncontrollable hay fever or a perforated nasal septum as required by AR 40-501 in order to constitute disqualification for service. Accordingly, no medical examination was required under AR 601-270 and there was no change in status over which the registrant, Kirkpatrick, had no control. The letters were properly treated and considered by the armed forces. There was no need to have them considered by the local board. Kirkpatrick alleges that his draft board should have reopened his file once he submitted his conscientious objector claim by written statement presented to authorities at the time of his induction on June 1, 1970. He contends that this claim constituted a “change in the registrant’s status resulting from circumstances over which the registrant had no control”. 32 CFR § 1625.2. The United States Supreme Court recently held that the local board is not required to consider a claim made after induction notice is received for a classification change to a conscientious objector. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). Regulation 1625.2, according to the Ehlert case, is to be confined to such “objectively identifiable” and “extraneous” circumstances that will prove manageable without placing extra burdens on the Selective Service System, such as injury or death in the family leaving the registrant as the sole surviving son. Under this interpretation, it is proper to conclude that military channels should have been" }, { "docid": "20790960", "title": "", "text": "B 2, the Court opted for in-service processing as the proper remedy. Wherefore the government advocates the conclusion that if Cotton would have submitted to induction after the decision in Ehlert, he would not have been denied an opportunity for a complete review and determination. The defendant contends that Ehlert does not apply to him inasmuch as his conscientious objection claim met the standards required for a reopening of his classification as set forth in United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966) cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967); United States v. Gearey II, 379 F.2d 915 (2d Cir. 1967) and Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). Further, he urges that his induction order is rendered invalid because his Board’s refusal to reopen his classification based upon the finding that he was not a genuine conscientious objector is without basis in fact. Title 50 Appendix, United States Code, Section 460(b) (3); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946). Thus since his claim pre-dated Ehlert, Cotton reasons that the application of Ehlert to him would sanitize the illegal action of his Board. This position is persuasive. Prior to Ehlert the law of this circuit relating to post-induction order claims for conscientious objection was well settled. A local board was required to reopen a registrant’s classification only if (1) a prima facie claim for conscientious objector status was presented, and (2) a change in the registrant’s status resulting from circumstances over which he had no control had occurred. Paszel v. Laird, supra, see 32 C.R.R. § 1625.2. The requisite change in status was defined to be not merely a change in beliefs (as suggested in United States v. Gearey I and II, supra,) but a change in beliefs entitling the registrant to conscientious objector status. Paszel v. Laird, supra, 426 F.2d at 1174. In setting this standard the Paszel court stated: “We recognize this means that, where the alleged change in status is a newly crystallized conscientious objection, a decision to reopen" }, { "docid": "7405165", "title": "", "text": "a prima facie case, based on objective facts, that he is entitled to be reclassified. United States v. Gearey, 379 F.2d 915, 922 n. 11 (2d Cir. 1967). See United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953). The Selective Service regulations require that before the Local Draft Board may reopen the case it must find that there has been a change in status resulting from circumstances over which the registrant has no control, subsequent to issuance of his induction notice. 32 C.F.R. § 1625.2. Sandbank claims that § 1625.2 does not apply in his case since the induction notice in question was cancelled by officials at the induction center. We believe, however, that there is sufficient evidence to conclude that the order was merely postponed rather than cancelled. Nor has Sandbank shown that his claim to conscientious objector status matured after the induction notice was issued. United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966). He bases his claim on his parochial school training, and states that he has held his beliefs since the age of seven. Further, although Sandbank has had numerous appeals on various grounds since reaching his eighteenth birthday, when his claim to conscientious objector status could have been fairly heard, he never mentioned these beliefs or his alleged pacifist 'training until after receipt of the induction order which was approximately three years later. In sum, Sandbank has failed to make a prima facie case demonstrating that he is entitled to reclassification. Sandbank also asserts that the court below should have directed a judgment of acquittal by reason of the government’s failure to show as part of its case in chief that he was called up for military duty in the proper order. He contends, relying on United States v. Lybrand, 279 F.Supp. 74 (E.D.N.Y.1967), that such affirmative proof is an essential element of the government’s case. We believe there was adequate evidence to support Judge Wyatt’s finding that Sandbank was called in proper order. Moreover, we do not agree with the District Court’s conclusion in Lybrand. We are" }, { "docid": "11745903", "title": "", "text": "at his local board and requested an application form for conscientious objector status, completed the form and returned it to the board on August 24, 1966. The local board rejected his claim for change in status in writing on the same day. There are three assignments of error, all centering around the failure of the District Court to grant appellant’s motion for judgment of acquittal. The first assignment is based on the racial composition of the Selective Service Board. Appellant, a Negro, contended that Negroes were systemieally excluded from selective service board service. This assignment is foreclosed by our holding in Clay v. United States, 5 Cir., 1968, 397 F.2d 901. It is thus without merit. The second is based on the fact of the introduction of appellant’s selective service file into evidence through the clerk of appellant’s local board. This assignment is also foreclosed against appellant. Lowe v. United States, 5 Cir., 1968, 389 F.2d 51; Pardo v. United States, 5 Cir., 1966, 369 F.2d 922. The other error asserted is based on the failure of the draft board to classify appellant as a conscientious objector. On the trial appellant contended that the denial to him of such classification was without basis in fact, arbitrary, summary and contrary to law. The opposite is true. As noted, appellant did not contend that he was a conscientious objector until after he had been ordered to report for induction. The regulation, Title 32, § 1625.2, Code of Federal Regulations, relating to reopening and reconsidering a classification prior to and after an order to report for induction, provides that “ * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” Appellant’s application for conscientious objector status shows that he acquired the belief which is the basis of his claim when he “Accepted Islam as taught by Honorable" }, { "docid": "7405164", "title": "", "text": "PER CURIAM: Although this ease was affirmed' in open court, we believe it desirable to state briefly our reasons for that action. Arnold G. Sandbank appeals from a judgment of conviction after trial before Judge Wyatt, sitting without a jury, for failure to report for induction into the military on July 26, 1967, and for failure to submit to induction on January 3, 1968. He was sentenced to three years on each count, the sentences to run concurrently. Sandbank contends that he was deprived of his liberty without due process of law because he was not able to contest the denial of his request for a 1-0 deferment as a conscientious objector after his induction notice was issued. A registrant may have his application for conscientious objector status considered by the Local Draft Board even after the induction notice is issued provided he raises his claim promptly after it matures. United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966). The Draft Board must reopen the case only if the registrant has made out a prima facie case, based on objective facts, that he is entitled to be reclassified. United States v. Gearey, 379 F.2d 915, 922 n. 11 (2d Cir. 1967). See United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953). The Selective Service regulations require that before the Local Draft Board may reopen the case it must find that there has been a change in status resulting from circumstances over which the registrant has no control, subsequent to issuance of his induction notice. 32 C.F.R. § 1625.2. Sandbank claims that § 1625.2 does not apply in his case since the induction notice in question was cancelled by officials at the induction center. We believe, however, that there is sufficient evidence to conclude that the order was merely postponed rather than cancelled. Nor has Sandbank shown that his claim to conscientious objector status matured after the induction notice was issued. United States v. Gearey, 368 F.2d 144, 150 (2d Cir. 1966). He bases his claim on his parochial school training, and states that" }, { "docid": "20081605", "title": "", "text": "absence of contrary evidence, we assume that the determination referred to in that subsection was made, i. e., that the board had a doubt as to the existence of the claimed disqualification. That determination is supported by ample basis in fact in the record. 3. Basis in fact statement. Finally Smith contends that the local board should have given him a “basis in fact statement” when it refused to reopen his classification after receiving his SSS 150 form (request to be classified as a conscientious objector). Smith received his induction orders on September 7, 1967. Two days later he wrote to his draft board requesting the SSS 150 form, which he received, completed and returned to the board. On October 5, 1967 the board refused to reopen his classification. The board was bound by 32 C.F.R. § 1625.2 which provides that a registrant’s classification shall not be reopened after his notice to report for induction has been mailed unless the local board first specifically finds that there has been a change in the registrant's status since the notice was mailed which resulted from circumstances over which the registrant had no control. It made no such finding. In this case there is ample evidence that Smith’s beliefs had crystalized long before his notice of induction was mailed. He admitted himself that he would have applied for conscientious objector status long before had he not been confident of getting a 4-F exemption. Under these circumstances the local board was not required to reopen Smith’s classification, United States v. Hulphers, supra; Rusk v. United States, supra; United States v. Weersing, 9 Cir., 1969, 415 F.2d 130; Dugdale v. United States, 9 Cir., 1968, 389 F.2d 482. Cf. Ehlert v. United States, 9 Cir., 1970, 422 F.2d 332 (in banc). Affirmed. . “The Surgeon General of the Department of the Army shall, from time to time, prescribe or approve a list enumerating various medical conditions or physical defects that disqualify registrants for service in the Armed Forces. A medical interview of certain registrants by the medical ad-visor to the local board shall be accomplished" } ]

[ { "docid": "22814583", "title": "", "text": "84 Civ. 3038, Memorandum and Order at 6 (S.D.N.Y. Nov. 26, 1984), reprinted in J.App. at 26, 31. In order to recover under section 10(b), a plaintiff must establish that the misrepresentation complained of caused the injury suffered. To establish causation, the plaintiff must show “both loss causation — that the misrepresentations or omissions caused the economic harm — and transaction causation — that the violations in question caused the [plaintiff] to engage in the transaction in question.” Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). We agree with the district court’s conclusion that the Bennetts have failed to allege the requisite causation. The Bennetts went to U.S. Trust with the idea of borrowing money to purchase public utility stock already in mind. U.S. Trust told the Bennetts that the margin rules do not apply to public utility stock pledged to a bank as collateral. The loans were then made and the public utility stock was bought. There are no allegations that U.S. Trust recommended that the Bennetts purchase public utility stock in general, that U.S. Trust recommended any particular public utility stock or that U.S. Trust misrepresented the investment value of any public utility stock. The Bennetts, and the Bennetts alone, decided to invest in public utility stock. The Bennetts argue, however, that if U.S. Trust had refused to make the loans, they would not have been able to purchase the stock. Thus, they claim that U.S. Trust caused the loss in question. This argument fails to distinguish between transaction causation and loss causation. The Bennetts’ but-for allegations at most establish transaction causation. Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 943 & n. 23 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984). They fail to establish the necessary loss causation; there is simply no direct or proximate relationship between the loss and the misrepresentation. See Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61-62 (2d Cir.1985). The Bennetts rely heavily on our" } ]

[ { "docid": "8851572", "title": "", "text": "The Court also notes, in the context of reliance, that a plaintiff must allege that the act complained of caused the injury in the sense that the alleged section 10(b) violations caused the claimed economic loss. Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986) (the necessary “loss causation” is “causation not merely in inducing the plaintiff to enter into a transaction ..., but causation of the actual loss suffered.”), cert, denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). In observing that the “loss causation” requirement stems from notions of “proximate causation” in tort law, the Second Circuit has explained loss causation as requiring “that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover, supra, 801 F.2d at 20 (citations omitted). The alleged harm here is the amount owing on the promissory note allegedly signed by plaintiff to cover the investment in CSH-1. Plaintiff alleges that investment in CSH-1 would not have been possible if defendants had not misstated plaintiff’s assets and income on the relevant forms. The Court concludes that defendants could reasonably have foreseen that an investment of this type for someone in plaintiff's circumstances would naturally lead to the harm for which relief is now sought. Forging the investment forms and misstating the relevant information are the acts which placed plaintiff in the precarious position she has found herself. The Court thus concludes that loss causation has adequately been pleaded. II. Section 12(2) Claim Defendant argues that plaintiff's section 12(2) claim is time-barred because plaintiff filed the complaint more than one year after she should reasonably have known of the existence of her cause of action. Section 13 of the 1933 Act provides that [n]o action shall be maintained to enforce any liability created under ... section 12(2) [15 U.S.C. § 111 (2) ] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise" }, { "docid": "2816774", "title": "", "text": "968 F.2d 1489, 1494 (2d Cir.1992) (1 Ob — 5 claim requires a showing of both transactional and loss causation). In a suit for failure to disclose the under-qualifications of a purchasing representative, the Second Circuit held that the omission caused the transaction because it induced the investors to buy the stock and caused the loss because it induced the investor to hold the stock as it declined in value. Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708-710 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Marbury is not applicable here because the undisclosed commissions could not have caused plaintiffs to hold their limited partnerships since there was no secondary market in which the limited partnerships could have been sold. See e.g., T.L. PPM at 16, 21, 30; Defs’ Ex. 1 subscription agreement ¶¶ 3(C)(d), 7. However, in two subsequent cases the Second Circuit changed the focus of loss causation analysis to whether the misstatement or omission goes to the quality of the investment. Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985); Manufactures Hanover Trust v. Drysdale Securities Corp., 801 F.2d 13, 22 (2d Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Bennett and Manufactures Hanover Trust indicate that the existence of a secondary market is no longer necessary to establish that fraudulent omissions regarding purchasing representatives caused plaintiffs' loss. Indeed such was. the holding in a case almost identical to the one at bar. Schwartz v. Michaels, 1992 WL 184527, *10 (S.D.N.Y.1992) (J. Patterson). However, since this portion of the complaint does not comply with Rule 9(b), we need not reach this argument. .However, in Adler I the securities fraud allegations were only plead as predicate acts for the RICO claim. Nonetheless they were dismissed for their lack of specificity. .In those cases where Finkle was the purchasing representative for investors prior to 1983, it received no direct commissions. However, Fin-kle’s partners were compensated through an indirect ownership interest in Berg Harmon which gave them a pro-rata interest in the" }, { "docid": "22249136", "title": "", "text": "have entered into the transaction; and loss causation, i.e., that the subject of the fraudulent statement or omission was the cause of the actual loss suffered. See Mfrs. Hanover Trust Co. v. Drysdale Secs. Corp., 801 F.2d 13, 20 (2d Cir.1986) (“The standard for liability in a civil action under section 10(b) is causation not merely in inducing the plaintiff to enter into a transaction or series of transactions, but causation of the actual loss suffered.”). The Litigation Reform Act similarly requires the plaintiff to demonstrate that the act complained of “caused the loss for which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4). Transaction causation is based upon the plaintiffs reliance upon the defendant’s deceptive statements or omissions; that is, but for such conduct by the defendant, the plaintiff would not have acted to his detriment. Loss causation is somewhat different. It has been likened to the tort concept of proximate cause, meaning that in order for the plaintiff to recover it must prove the damages it suffered were a foreseeable consequence of the misrepresentation. See Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1495 (2d Cir.1992). In sum, to escape dismissal of a securities fraud complaint, the plaintiff must demonstrate that the fraud caused the plaintiff to engage in the transaction and that it also caused the harm actually suffered. See Weiss v. Wittcoff, 966 F.2d 109, 111 (2d Cir.1992) (per curiam). Because these concepts are somewhat elusive, they are the subjects of extensive scholarly and judicial comment. The loss causation inquiry typically examines how directly the subject of the fraudulent statement caused the loss, and whether the resulting loss was a foreseeable outcome of the fraudulent statement. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir.1994); Citibank, 968 F.2d at 1495 (holding that to establish loss causation plaintiff must show that the economic harm it suffered occurred as a foreseeable result of the- alleged misrepresentations). Related factors include whether intervening causes are present, see First Nationwide, 27 F.3d at 769; Bastian v. Petren Res. Corp., 892 F.2d 680, 685 (7th" }, { "docid": "4007234", "title": "", "text": "9, 1990. According to the complaint, the Wittcoffs have continued to run WPC, exploiting it for their own gain. Weiss brought this suit in February 1991, alleging securities fraud in the issuance of WPC stock to Mark Witteoff. Specifically, Weiss alleges that in violation of § 10(b) of the Act, the Wittcoffs made certain misrepresentations to him, in reliance upon which Weiss issued fifty percent of WPC’s common stock to Mark Witt-eoff. As a further result of defendants’ fraudulent acts, Weiss claims, WPC has suffered severe losses, and the value of Weiss’s own holdings in WPC has been greatly reduced. Weiss also asserts pendent claims for fraud, breach of fiduciary duty and conversion. The district court stayed discovery pending decision on defendants’ motion to dismiss. On December 30, 1991, the court issued a one-page order dismissing the complaint “for failure to properly and sufficiently allege loss causation.” DISCUSSION A claim under § 10(b) of the Act requires a showing of both “transaction causation” and “loss causation.” In other words, the plaintiff must show that the defendant’s misrepresentations not only caused the plaintiff to engage in the transaction in question, but also that they caused the harm suffered. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988), vacated on other grounds and affd on reconsideration, Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). While transaction causation requires only a “but for” allegation, see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), whether loss causation has been alleged turns upon a question of proximate cause: was the damage complained of a foreseeable result of the plaintiff's reliance on the fraudulent misrepresentation? Marburg Mgmt., Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.), cert. denied, Wood Walker & Co. v. Marburg Mgmt, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). The" }, { "docid": "23283277", "title": "", "text": "a case. We disagree. We believe that the fourth amended complaint fails to allege loss causation. To establish loss causation a plaintiff must show, that the economic harm that it suffered occurred as a result of the alleged misrepresentations. See Bloor, 754 F.2d at 61. We have on occasion likened loss causation to the tort concept of proximate cause, see Litton, 967 F.2d at 747 (“The causation analysis [in a § 10(b) claim] encompasses two related, yet distinct elements — reliance and causation— elements that, in effect, correspond respectively with common law notions of ‘but for’ and proximate causation.”), because, similar to proximate cause, in order to establish loss causation, a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation. Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-21 (2d Cir.1986). Contrary to Citibank’s assertion otherwise, this Court also requires the plaintiff to allege that the misrepresentation induced it to enter into the transaction and that the misrepresentation was the cause of the actual loss suffered. Id. at 20 (citing Chemical Bank, 726 F.2d at 943 & n. 23; Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975)). In the fourth amended complaint Citibank alleged that Stoecker’s and Fruehauf’s fraud induced it to extend credit to GAIL. However, we agree with the district court that the fourth amended complaint’s assertion that “[i]f Citibank had been aware of the agreements between Fruehauf and Stoecker, it would have reacted appropriately, in this case by refusing to provide the financing as contemplated,” alleged only “but-for” causation. Citibank does not allege facts that support its allegation that there is a causal connection between the fraud alleged and the subsequent loss that it suffered. In short, in the complaint Citibank “suggests] no reason why the investment was wiped out. [Citibank has] alleged the cause of [its] entering into the transaction in" }, { "docid": "5169611", "title": "", "text": "Barber, 576 F.2d 465, 470 (2d Cir.1978). Here, the Plaintiffs identified facts which they contend were omitted from the projections but which were in fact adequately disclosed by the risks revealed in the Miami PPM. C. The Barron Plaintiffs § 10(b) Claims Fail to Establish Loss Causation In addition, in order to sustain a § 10(b) securities fraud claim, the Plaintiffs must allege both transaction and loss causation. Weiss v. Wittcoff, 966 F.2d 109, 111 (2d Cir.1992). In order to plead transaction causation, Plaintiff must allege that misstatements or omission caused Plaintiffs to invest in the Partnership in the first place. To plead loss causation, Plaintiffs must allege that those misstatements or omissions are the reasons why Plaintiffs investments did not pan out. As such, Plaintiffs “must also allege that the specified misrepresentations and omissions ‘proximately relate to the alleged reasons for the investors’ losses.” Finkel v. Stratton Carp., 754 F.Supp. 318, 330 (S.D.N.Y.1990) (quoting In re Gas Reclamation, Inc., Sec. Litig., 733 F.Supp. 713, 722 (S.D.N.Y.1990)), affd in part and rev’d in part on other grounds, 962 F.2d 169 (2d Cir.1992). The Miami Complaint simply does not allege transaction causation or that “but for” the misrepresentations and omissions, Plaintiffs would not have invested in the Partnership. Similarly, the Barron Plaintiffs have not adequately alleged loss causation; that is the Plaintiffs have not plead why their investments lost value. See Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 86 (2d Cir.1988). In a real estate secui'ities case similar to the one at bar, the Honorable Charles S. Haight held that the plaintiffs’ conclusory pleadings of loss causation was insufficient “given other plausible explanations for the investors’ ultimate disappointment, such as changes in the tax laws and a downturn in the real estate market.” Finkel v. Stratton Corp., 754 F.Supp. 318, 330 (S.D.N.Y.1990). Similarly, the Barron Complaint does not adequately allege why the Defendants alleged fraudulent acts necessarily resulted in their investment injuries. The Complaint merely states that due to “competitive pressures, as alleged, the downward economic course of the Project continued from 1985 until the Project was lost in" }, { "docid": "16508111", "title": "", "text": "language contained in the PPMs does not shield Arthur Andersen from liability under section 10(b). The court also finds that similar cautionary language attached to the property valuations does not shield Blake and the other non-settling appraiser defendants — American Appraisal Associates, Inc. (“American Appraisal”), Coldwell Banker Commercial Real Estate Group, Inc. (“CB”), and Dixon & Friedman — from section 10(b) liability. 2. Causation Arthur Andersen next argues that it is not hable under section 10(b) because the plaintiffs have failed to properly allege that the projections caused their injury. The court disagrees. To state a claim under section 10(b), a plaintiff must allege that its reliance on the defendant’s statements caused its injury. Royal Am. Managers v. IRC Holding Corp., 885 F.2d at 1015; Gruber v. Prudential-Bache Securities, Inc., 679 F.Supp. 165, 175 (D.Conn.1987). The causation requirement is comprised of two elements: (1) transaction causation — that the defendant’s misrepresentations induced the plaintiffs to invest in the transactions; and (2) loss causation — that the economic harm suffered by the plaintiffs occurred as a result of the misrepresentations. See Citibank, N.A. v. K-H Corporation, 968 F.2d at 1494. Transaction and loss causation have been compared to the elements of causation required in tort law. See Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.) (citing Restatement (Second) of Torts, Sec. 548A (1977)), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Transaction causation parallels the requisite “but for” element in tort law: but for the misrepresentations, the plaintiffs would not have invested. Loss causation resembles the element of proximate cause “because, similar to proximate cause ... a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank N.A. v. K-H Corp., 968 F.2d at 1495 (citing Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-21 (2d Cir.1986)). a) Transaction Causation. For purposes of section 10(b), transaction causation amounts to an analysis of materiality. See Gruber v. Prudential-Bache Securities, 679 F.Supp. 165, 176 (D.Conn.1987) (“As long as the misrepresentations are material, transaction causation may be presumed.”). A" }, { "docid": "6436008", "title": "", "text": "(2d Cir.1973); Dolmetta v. Uintah National Corp., 712 F.2d 15, 19 (2d Cir.1983). Here, plaintiff contends, investors did not suffer a loss attributable to Touche until the IRS disallowed their tax deductions in 1987, citing Zola v. Gordon, 685 F.Supp. 354 (S.D.N.Y.1988), as support for the proposition that the statute of limitations for a § 10(b) claim arising from investment in a tax shelter limited partnership accrues upon receipt of the IRS disallowance notice, as well as Bauman v. Centex Corp., 611 F.2d 1115, 1119 (5th Cir.1980), which dealt with the date of accrual of an action against an accountant in connection with the preparation of a tax return as the date of disallowance. To buttress his position, Block notes that 10b-5 claims require the plaintiff to establish both transaction and loss causation. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Bennett v. U.S. Trust Company, 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). “In addition, to the significance of the misrepresentations in the chain of causation, ‘loss causation’ requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 21 (2d Cir.1986), cert. denied sub nom. Arthur Anderson & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also Oleck v. Fisher, [1979 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 96,898 at 95,702-03, 1979 WL 1217 (S.D.N.Y.1979), affirmed, 623 F.2d 791 (2d Cir.1980). From these authorities Block concludes that until the tax disallowance he could not attribute any loss to misrepresentations of Touche. However, Block does not allege any fraudulent concealment by Touche, and in the absence of such an allegation, the reasoning in O’Brien v. National Property Analysts Partners, 719 F.Supp. 222, 232 (S.D.N.Y.1989) is applicable. There, the Honorable Peter K. Leisure held that knowledge of facts that lead to an adverse IRS determination — as opposed to the later receipt of" }, { "docid": "8851571", "title": "", "text": "at 198. Even if the account in the present case were not discretionary, since it appears that consent by plaintiff was necessary prior to investment, the knowing forgery and alteration of documents by defendants has the same effect as the purchase of an unsuitable security in a discretionary account. In both cases, defendants have acted with scienter, a principal requirement, see id. (noting that scienter is the chief precondition of liability, not the recommendation), and in both situations the broker is acting on behalf or in the stead of the investor in a fraudulent fashion. Similarly, in Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231 (S.D.N.Y.1983), the Court stated that plaintiff did not need to allege reliance on defendant’s deliberate misstatements in a Discretionary Information Statement concerning plaintiff’s investment objectives “since these statements were designed not to mislead [plaintiff] but to facilitate [defendant’s] fraudulent conduct.” 567 F.Supp. at 1236. In the present case, as well, the alleged misstatements in plaintiff’s investor questionnaire were designed not to mislead plaintiff but to advance defendants’ alleged fraudulent scheme. The Court also notes, in the context of reliance, that a plaintiff must allege that the act complained of caused the injury in the sense that the alleged section 10(b) violations caused the claimed economic loss. Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986) (the necessary “loss causation” is “causation not merely in inducing the plaintiff to enter into a transaction ..., but causation of the actual loss suffered.”), cert, denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). In observing that the “loss causation” requirement stems from notions of “proximate causation” in tort law, the Second Circuit has explained loss causation as requiring “that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover, supra, 801 F.2d at 20 (citations omitted). The alleged harm here is the amount owing on the promissory note allegedly signed by plaintiff to cover the investment in CSH-1. Plaintiff alleges that investment in" }, { "docid": "12386878", "title": "", "text": "of the moving defendants except Eddie Antar. 4. Failure to Allege Injury Defendants claim that the complaint is insufficient under section 10(b) because plaintiffs fail to allege that they sold their shares at a loss attributable to the alleged misstatements. To allege injury under section 10(b), plaintiffs must plead both “transaction causation” — that the alleged misstatements caused them to purchase Crazy Eddie securities — and “loss causation” — that they suffered economic loss as a result. E.g., Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Defendants contend that plaintiffs can only allege “loss causation” by claiming to have sold their shares at a loss. The economic losses cognizable under section 10(b) are not limited to the type of out-of-pocket loss envisioned by defendants. The complaint alleges that defendants made materially misleading statements and omissions that caused the price of Crazy Eddie stock to be higher than its true value. Consequently, plaintiffs paid more for the stock than it was worth. Their injury is the difference between the price paid and the true value of the stock when bought. See, e.g., In re Washington Pub. Power Supply Sys., 650 F.Supp. 1346, 1354 (W.D.Wash.1986), aff'd, 823 F.2d 1349 (9th Cir.1987) (plaintiff can recover “the amount paid over the true value.... [T]he injury occurs at the time of purchase”). Packer v. Yampol, 630 F.Supp. 1237 (S.D.N.Y.1986), cited by defendants, is not to the contrary. In that case plaintiffs alleged not only that misrepresentations had inflated the price of the securities they purchased, but that the misrepresentations continued through the date of the pleading. Plaintiffs were thus free to sell their securities at an inflated price and “bail out” of the company unscathed. In this case, plaintiffs allege that the truth has already come to light, making the inflated prices they paid a thing of the past. That allegation is sufficient to establish a section 10(b) injury. Not only is it unnecessary to allege" }, { "docid": "7704870", "title": "", "text": "cases), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1986). Accord, Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Transaction causation focuses on whether the alleged fraud induced the plaintiff to buy the security, while loss causation looks at whether the fraud was responsible for the plaintiffs pecuniary injury. Transaction causation can be thought of as “but for” causation, or reliance. See, e.g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 n. 6 (2d Cir.1981); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 and n. 11 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). Where the complaint alleges a failure to disclose material facts, “positive proof of reliance is not a prerequisite to recovery.” Affiliated Ute Citizens v. United States, supra, 406 U.S. at 153-54, 92 S.Ct. at 1472, 31 L.Ed.2d 741 (1972). Rather, proof of materiality coupled with a duty to disclose establishes “causation in fact.” Id. Therefore, in an omission case, transaction causation, which is actually reliance, can be inferred from materiality. See generally Madison Consultants v. Federal Deposit Ins. Corp., 710 F.2d 57, 65 n. 6 (2d Cir.1983); In re Catanella and E.F. Hutton and Co. Securities Litigation, supra, 583 F.Supp. at 1414-15. There can be no question under the applicable law that plaintiffs in the instant case have adequately pleaded the causation element of their 10(b) claim. The alleged omissions were clearly material. The Court can properly infer that if Ossorio had disclosed his scheme to use plaintiffs’ funds for the benefit of himself and Drys-dale, plaintiffs would never have permitted the securities transactions set forth above. Furthermore, plaintiffs have alleged that defendants were involved directly in the process by which their funds were diverted. See In re Investors Funding Corp., 566 F.Supp. 193, 202 (S.D.N.Y.1983). The damage plaintiffs complain of must be considered a foreseeable consequence of the alleged fraud. See Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., supra, 801 F.2d at 21; Marbury Mgmt., Inc. v." }, { "docid": "8317146", "title": "", "text": "proof of a causal relationship between defendants’ misrepresentations or omissions and the plaintiff’s losses.” (Defendants’ Memorandum in Support of Their Motion to Dismiss the Amended Complaint or, in the Alternative, to Stay the Action, or for Change of Venue, p. 34). Again, the point is not whether plaintiff will be ultimately successful in its 10(b) action, but whether or not it has adequately pleaded certain 10(b) elements such as causation. “The requirement of ‘loss causation’ derives from the common law tort concept of ‘proximate causation.’ ” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). “The generalization is that only the loss that might reasonably be expected to result from action or inaction in reliance on a fraudulent misrepresentation is legally, that is, proximately, caused by the misrepresentation.” Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.1980), cert. denied sub nom. Wood Walker & Co. v. Marbury Management, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Loss causation “in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Id. In its complaint, Seagoing made numerous allegations — that prior to the Basses 13(d) filings on January 18, 1984, commencing in May 1982, the Basses initiated discussions with Texaco’s chairman and other directors regarding a buy-back plan by Texaco of the stock held by the Basses. The complaint further alleges that despite their true intention to have Texaco buy back its stock at a “price above the market price,” (amended complaint, 117(c)), as reflected in their prior negotiations with Texaco, the Basses stated in their 13(d) filings only that their purchases were for investment purposes. Seagoing claims that if the Basses had revealed their true intention, to effect a Texaco repurchase, the price of Texaco stock would not have artificially risen. Plaintiff’s purchase of Texaco stock was made with the belief that the market price had not been manipulated, and that" }, { "docid": "7704869", "title": "", "text": "recognized as forming the basis of a valid securities claim in a variety of contexts. E.g., Darrell v. Goodson, Parry, Manko & Costa, Inc., No. 78 Civ. 5945(LFM), slip op., 1980 WL 1392 (S.D.N.Y. April 11, 1980); Troyer v. Karcagi, supra, 476 F.Supp. at 1149. Accord In re Catanella and E.F. Hutton and Co. Securities Litigation, 583 F.Supp. 1388, 1413 (E.D.Pa.1984) (“Where a broker is given control of the client’s portfolio, the choice of a broker is tantamount to the choice of securities.”). Accordingly, the Court concludes that the fraud alleged in the complaint was in connection with purchases and sales of securities, within the meaning of section 10(b). c. The Causation Requirement To make out a claim under section 10(b), a plaintiff must establish both loss causation and transaction causation. Civil liability under section 10(b) requires “causation not merely in inducing the plaintiff to enter into a transaction or series of transactions, but causation of the actual loss suffered.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.) (citing cases), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1986). Accord, Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Transaction causation focuses on whether the alleged fraud induced the plaintiff to buy the security, while loss causation looks at whether the fraud was responsible for the plaintiffs pecuniary injury. Transaction causation can be thought of as “but for” causation, or reliance. See, e.g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 n. 6 (2d Cir.1981); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 and n. 11 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). Where the complaint alleges a failure to disclose material facts, “positive proof of reliance is not a prerequisite to recovery.” Affiliated Ute Citizens v. United States, supra, 406 U.S. at 153-54, 92 S.Ct. at 1472, 31 L.Ed.2d 741 (1972). Rather, proof of materiality coupled with a duty to disclose establishes “causation in fact.” Id." }, { "docid": "8317145", "title": "", "text": "434, 74 L.Ed.2d 594 (1982). Hence, direct reliance is not a prerequisite because it is presumed that “an investor relies generally on the supposition that the market price is validly set and that no unsuspected fraud has affected the price.” Id. Where Seagoing has alleged numerous facts to establish that the Basses 13(d) filings were false and misleading, that the market price of Texaco stock was artificially inflated after the 13(d) filings, and where it further alleges that there was a concomitant drop in such price after Texaco’s announcement of the repurchase agreement of the Basses’ stock, plaintiff has sufficiently pleaded its fraud on the market theory. Moreover, as discussed above, Seagoing also pointed to various events prior to the Basses’ January 18, 1984 13(d) filing to negate the Basses’ stated purpose in their filing that their Texaco purchases were for mere investment. Such allegations of omissions or half-truths are sufficient to invoke the Xlte presumption and to withstand defendants’ motion for dismissal. 4. Loss Causation Defendants maintain that a “successful § 10(b) action requires proof of a causal relationship between defendants’ misrepresentations or omissions and the plaintiff’s losses.” (Defendants’ Memorandum in Support of Their Motion to Dismiss the Amended Complaint or, in the Alternative, to Stay the Action, or for Change of Venue, p. 34). Again, the point is not whether plaintiff will be ultimately successful in its 10(b) action, but whether or not it has adequately pleaded certain 10(b) elements such as causation. “The requirement of ‘loss causation’ derives from the common law tort concept of ‘proximate causation.’ ” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). “The generalization is that only the loss that might reasonably be expected to result from action or inaction in reliance on a fraudulent misrepresentation is legally, that is, proximately, caused by the misrepresentation.” Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.1980), cert. denied sub nom. Wood Walker & Co." }, { "docid": "2692686", "title": "", "text": "Sedima, 473 U.S. at 496, 105 S.Ct. at 3285; County of Suffolk, 907 F.2d at 1311; Hecht v. Commerce Cleanng House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“[b]y itself, factual causation {e.g., ‘cause-in-fact’ or ‘buffer’ causation) is not sufficient”); Ceribelli v. Elghanayan, 990 F.2d 62, 65 n. 3 (2d Cir. 1993) (citing Holmes v. Sec. Investor Protection Corp., — U.S. at— —, 112 S.Ct. at 1316-18; Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-22 (2d Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987)). In the Second Circuit, the RICO pattern or acts proximately cause a plaintiffs injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence. Hecht v. Commerce Clearing House, Inc., 897 F.2d at 23-24. Plaintiffs allege in eonclusory language that they suffered and continue to suffer injury “as a result of’ defendants’ racketeering activity. (Compl. ¶¶ 78, 80, 85) However, plaintiffs do not allege any facts to support this conclusion. In other words, plaintiffs do not allege what caused their alleged injury. Several factors other than the alleged misrepresentations and omissions could have caused injury to plaintiffs. See First Nationwide Bank v. Gelt Funding, Inc., No. 92 Civ. 0790, 1992 WL 358759, 1992 U.S.Dist. LEXIS 18278 (S.D.N.Y. Nov. 30, 1992). In fact, plaintiffs’ sole allegation as to causation is that Southmark’s bankruptcy was caused by “Charles Keating’s attempt to cash Lincoln’s Southmark issued junk bonds.” (Compl. ¶ 77) To the extent Southmark’s bankruptcy is relevant at all, this allegation suggests one factor other than defendants’ alleged fraud that contributed to plaintiffs’ losses. In addition, plaintiffs have not alleged that the representations in the PPMs were substantially different from the true market value. Unless the true market value of the properties was significantly lower than the value disclosed in the PPMs, plaintiffs cannot allege injury from paying too much for partnership property that subsequently declined in value. This is especially true because the time between the alleged misstatements and injury was considerable —" }, { "docid": "16508112", "title": "", "text": "result of the misrepresentations. See Citibank, N.A. v. K-H Corporation, 968 F.2d at 1494. Transaction and loss causation have been compared to the elements of causation required in tort law. See Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.) (citing Restatement (Second) of Torts, Sec. 548A (1977)), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Transaction causation parallels the requisite “but for” element in tort law: but for the misrepresentations, the plaintiffs would not have invested. Loss causation resembles the element of proximate cause “because, similar to proximate cause ... a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank N.A. v. K-H Corp., 968 F.2d at 1495 (citing Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-21 (2d Cir.1986)). a) Transaction Causation. For purposes of section 10(b), transaction causation amounts to an analysis of materiality. See Gruber v. Prudential-Bache Securities, 679 F.Supp. 165, 176 (D.Conn.1987) (“As long as the misrepresentations are material, transaction causation may be presumed.”). A misrepresentation is “material” when it would have misled a reasonable investor about the nature of the investment. I. Meyer Pincus & Associates v. Oppenheimer & Co., Inc., 936 F.2d at 761. This is a liberal standard and “a complaint may not properly be dismissed pursuant to Rule 12(b)(6) (or even pursuant to Rule 56) on the ground that the alleged misstatements or omissions are not material unless they are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). In the instant case, the projections clearly fall within this liberal definition of materiality. Therefore, transaction causation may be presumed. b) Loss Causation. With respect to loss causation, it is of course insufficient for a plaintiff to allege that the defendant incorrectly predicted the future, or that some unforeseen event occurred which rendered the investment worthless. See Friedman v. Mohasco Corp., 929 F.2d 77, 79 (2d Cir.1991); Schwartz v. Novo Industri, A/S, 658 F.Supp. 795, 798 (S.D.N.Y.1987). However," }, { "docid": "2526159", "title": "", "text": "the nature and value of the securities pledged as collateral, and should clearly, for reasons of policy and common sense, be within the ambit of the federal securities laws. 2. The Causation Requirement “In order to recover under Section 10(b), a plaintiff must establish that the misrepresentation complained of caused the injury suffered. To establish causation, the plaintiff must show ‘both loss causation — that the misrepresentations or omissions caused the economic harm — and transaction causation — that the violations in question caused the [plaintiff] to engage in the transaction in question.’ ” Bennett v. United States Trust Co. of New York, 770 F.2d 308, 313 (2d Cir.1985) (quoting Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974) (emphasis in original), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975)); see also Horwitz v. AGS Columbia Associates, 700 F.Supp. 712, 721 (S.D.N.Y.1988). Thus, the question is whether the loss suffered was a reasonably foreseeable result of the alleged fraud. Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20-21 (2d Cir.1986). The parties do not dispute that Citibank has adequately alleged the transaction causation requirement of Section 10(b) in the complaint. Transaction causation is generally referred to as “but for causation,” meaning that but for the misrepresentation or omission, the losses would not have occurred. Citibank alleges that Fruehauf and Kelsey-Hayes fraudulently misrepresented the amount which Fruehauf received as payment for the subsidiaries, by failing to disclose that it received a $7 million promissory note from Stoecker as part of the acquisition price. Complaint, HU 19-29. Citibank alleges that if it had been aware of Stoecker’s $7 million promissory note to Fruehauf, it would not have executed the secured credit agreement with GAIL. Complaint, UU 21, 25. As the Court must accept Citibank’s allegations as true in the context of a motion pursuant to Rule 12(b)(6), Citibank has adequately pled transaction causation. As to the loss causation, or proximate cause, requirement of Section 10(b), Frue-hauf and Kelsey-Hayes argue that Citi bank has not adequately pled that the alleged fraud caused GAIL’s default" }, { "docid": "6436009", "title": "", "text": "88 L.Ed.2d 776 (1986). “In addition, to the significance of the misrepresentations in the chain of causation, ‘loss causation’ requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 21 (2d Cir.1986), cert. denied sub nom. Arthur Anderson & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also Oleck v. Fisher, [1979 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 96,898 at 95,702-03, 1979 WL 1217 (S.D.N.Y.1979), affirmed, 623 F.2d 791 (2d Cir.1980). From these authorities Block concludes that until the tax disallowance he could not attribute any loss to misrepresentations of Touche. However, Block does not allege any fraudulent concealment by Touche, and in the absence of such an allegation, the reasoning in O’Brien v. National Property Analysts Partners, 719 F.Supp. 222, 232 (S.D.N.Y.1989) is applicable. There, the Honorable Peter K. Leisure held that knowledge of facts that lead to an adverse IRS determination — as opposed to the later receipt of a notice to that effect — triggers the running of the statute of limitations: Where an offering memorandum discloses the transactions that subsequently lead to IRS challenges, plaintiffs’ efforts to rely on an IRS report as the source of discovery of fraud are insufficient. 719 F.Supp. at 232 n. 11. In General Builders Supply Co. v. River Hill Coal Venture, 796 F.2d 8 (1st Cir.1986), investors in a coal mining limited partnership brought suit against the promoter, law firm and financial advisor involved in the venture, as well as the accounting firm that reported on a pro forma financial analysis, claiming that they were defrauded because the management of the venture never intended to make a profit, a fact allegedly never revealed to them, thus negating the possibility of their receiving tax benefits. The district court dismissed the complaint, holding that plaintiffs had recognized “storm warnings” of the alleged fraud long before their receipt of IRS notices, and thus concluded that “the statute began to run prior to receipt by the investors of their disallowance" }, { "docid": "14456246", "title": "", "text": "with” the sale of securities, not whether there was transaction causation. Second, in Bosio, plaintiffs claim was essentially one involving conversion, not securities fraud, and the alleged misrepresentation went merely to the mechanics of the sale and not to any inducement by defendants with respect to the investment purpose of the sale. By contrast, Connors alleges that the promised insurance was a strong inducement in getting him to purchase precious metals from IGBE and to continue participating in the Program. Specifically, he alleges that defendants’ participation in the scheme enabled IGBE to succeed in attracting customers and that defendants knew that the promise of insurance was being used as an inducement. In effect, plaintiff has presented a “but for” argument: “But for the insurance, I would not have purchased the ‘security.’ ” This showing is sufficient. See, e.g., Bennett, 770 F.2d at 314; Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 943 n. 23 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984). (2) Loss Causation Whether plaintiff has satisfied this prong of the causation requirement is more problematic, but the Court concludes that the complaint is adequate. This requirement, as the Second Circuit has explained, “derives from the common law concept of ‘proximate causation’ ” and “in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresenation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20-21 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 952, 107 S.Ct. 952 (1987) (quotations omitted). Based on the reasoning and the analogousness of the facts in Manufacturers and Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980), the Court concludes that plaintiff has adequately alleged loss causation. As in those two cases, plaintiff has asserted that defendants’ alleged misrepresentations induced him to participate in the Pro gram and that defendants knew that their misrepresentations were being relied upon. As in Manufacturers and Marbury, defendants’ misrepresentations went to the investment quality of the Program," }, { "docid": "18974432", "title": "", "text": "ie. that but for the fraudulent statement or omission, the plaintiff would not have entered into the transaction; and loss causation, ie., that the subject of the fraudulent statement or omission was the cause of the actual loss suffered.” Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 95 (2d Cir.2001); see also Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 186-87 (2d Cir.2001); Grace v. Rosenstock, 228 F.3d 40, 46 (2d Cir.2000). Transaction and loss causation are alleged when plaintiffs aver “both that they would not have entered the transaction but for the misrepresentations and that the defendants’ misrepresentations induced a disparity between the transaction price and the true ‘investment quality’ of the securities at the time of transaction.” Suez Equity, 250 F.3d at 97-98 (emphasis in original). Given the difficulty of proving direct reliance in the complex world of the modern securities markets, plaintiffs may rely on the “fraud-on-the-market” theory. Under the fraud-on-the-market theory, plaintiffs need not allege that they actually encountered the misrepresentation. Instead, they are presumed to have relied on the market to have “perform[ed] a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price.” Basic, 485 U.S. at 244, 108 S.Ct. 978 (citation omitted); see DiRienzo v. Philip Services Corp., 294 F.3d 21, 33 (2d Cir.2002). Although the presumption is not absolute, at the pleading stage it satisfies plaintiffs’ burden of alleging transaction causation. See Basic, 485 U.S. at 247, 108 S.Ct. 978; In re Ames Dept. Stores Inc. Stock Litig., 991 F.2d 953, 967 (2d Cir.1993). Loss causation is akin to the concept of “proximate cause” in tort law, “meaning that in order for the plaintiff to recover it must prove the damages it suffered were a foreseeable consequence of the misrepresentation.” Suez Equity, 250 F.3d at 96 (citation omitted); see also Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 21 (2d Cir.1986)." } ]

[ { "docid": "8773343", "title": "", "text": "circumstances, the state procedures were so defective as to warrant federal intervention. III. Having found that Judge Weinstein properly exercised jurisdiction, we do not have any difficulty with his determination that the jurors’ consideration of extrinsic information violated the Constitution. While the thirteenth century jury may well have been selected for its familiarity with the facts in a particular case, the modern jury is instructed to reach its verdict solely on the basis of the evidence before it. See Irwin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). This sensitivity to the source of information brought into the jury room is grounded in the unremarkable perception that all evidence developed against an accused must “come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965). It does not matter whether the “taint” of outside influence derives from pervasive adverse prejudicial publicity .which cannot be obliterated from the jurors’ minds, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) or the ill-chosen remarks of a bailiff, Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). In determining specifically whether the introduction of extrinsic evidence warrants habeas corpus relief, the starting point must be the opinion of Judge Friendly in United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1972). In Owen, several of the jurors mentioned that they knew “all about Owen,” and introduced in their deliberations the facts that Owen’s father was constantly getting him “out of trouble”; that Owen had been suspended from the police force in connection with the unauthorized use of a prowl car; and that he had been involved in a tavern fight. Finding that specific extra-record facts had been discussed and that there was a significant possibility of prejudice, we held that Owen’s due process rights had been" } ]

[ { "docid": "880143", "title": "", "text": "F.2d 236 (4th Cir. 1971). . Government of Virgin Islands v. Gereau, 523 F.2d 140, 150 (3rd Cir. 1975) cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976) (“consideration by the jury of extra-record facts about the case ... [is] prima facie incompatible with the Sixth Amendment.”); United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972) ; Farese v. United States, 428 F.2d 178, 179 (5th Cir. 1970). . The Fifth Circuit has referred metaphorically to extraneous evidence as “the dagger of hidden evidence.” United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975). . The length of jury deliberations has been cited as a factor of some importance in Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (26 hours) and Dallago v. United States, 427 F.2d 546, 559 (D.C.Cir.1969) (5 days). In opposing the petitioner’s motion for a new trial the prosecution stated that the jury actually only deliberated for “possibly nine hours.” Presumably the prosecution meant that this nine hour period was spread over two and one half days. Even accepting the prosecution’s version, however, it does not seem possible that the jury would have deliberated nine hours over several days if the jurors did not have serious questions as to the credibility of the eyewitnesses. . The fact that a jury has acquired inadmissible evidence has been cited in United States v. Vasquez, 597 F.2d 192, 194 (9th Cir. 1979), and Dallago v. United States, 427 F.2d 546, 558 (D.C.Cir.1969)." }, { "docid": "4019383", "title": "", "text": "verdict. In other respects, Krainak substantially confirmed her earlier affidávit, repeating that she had told the other jurors that she thought there were no open businesses at 74 Ewing Avenue. The trial court denied Bibbins’s motion without conducting a hearing, finding, inter alia, that juror Krainak’s statement was “reflected, in part, in the trial testimony and photograph in evidence.” The Appellate Division of the Supreme Court, Second Judicial Department, affirmed the trial court’s ruling. People v. Bibbins, 188 A.D.2d 539, 591 N.Y.S.2d 445 (2d Dept.1992). The New York Court of Appeals denied leave to appeal. People v. Bibbins, 81 N.Y.2d 882, 597 N.Y.S.2d 942, 613 N.E.2d 974 (March 17, 1993). Bibbins’s petition for a writ of habeas corpus was denied by the district court, and Bibbins now appeals that denial. DISCUSSION The Sixth Amendment guarantees criminal defendants the right to a trial by jury, including the right to confront one’s accusers. U.S. Const. Amend. VI. The Supreme Court has interpreted this provision to require that the jury’s verdict “be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). A defendant’s Sixth Amendment rights are therefore implicated, when the jury considers incriminating evidence that was not admitted at trial. United States v. Simmons, 923 F.2d 934, 943 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991); United States ex rel. Owen v. McMann, 435 F.2d 813, 817-18 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). On our direct review of federal convictions, extra-record information that becomes known to the jury is “presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); United States v. Weiss, 752 F.2d 777, 782-83 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983). This presumption, however, may be overcome by a showing that the extra-record information" }, { "docid": "4019384", "title": "", "text": "the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). A defendant’s Sixth Amendment rights are therefore implicated, when the jury considers incriminating evidence that was not admitted at trial. United States v. Simmons, 923 F.2d 934, 943 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991); United States ex rel. Owen v. McMann, 435 F.2d 813, 817-18 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). On our direct review of federal convictions, extra-record information that becomes known to the jury is “presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); United States v. Weiss, 752 F.2d 777, 782-83 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983). This presumption, however, may be overcome by a showing that the extra-record information was harmless. Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Weiss, 752 F.2d at 783. As we have said: “The touchstone of decision ... is thus not the mere fact of infiltration of some molecules of extra-record matter ... but the nature of what has been infiltrated and the probability of prejudice.” McMann, 435 F.2d at 818. Our review of the effect of constitutional errors on a state court conviction is more limited. In order to secure a writ of habeas corpus following a state-court conviction, a petitioner alleging that a trial error violated his constitutional rights must show that the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, — U.S. —, —, 113 S.Ct. 1710, 1716 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1353, 90 L.Ed. 1557 (1946)). In other words, the petitioner must show “actual prejudice” flowing from the alleged error. Id. In assessing petitioner’s claim of prejudice, we apply the Federal Rules of Evidence. See Fed.R.Evid. 1101(e)" }, { "docid": "14567095", "title": "", "text": "of such “general knowledge” does not qualify as “extraneous prejudicial information” within the exception of Rule 606(b). See Government of Virgin Islands v. Gereau, 523 F.2d 140, 151 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Pacific Employers Ins. Co. v. Orren, 160 F.2d 1011 (5th Cir.1947). In any case, the statement concerning Johns Manville was not prejudicial to these defendants. Certain jurisdictions have seemingly adopted a rebuttable presumption of prejudice standard, see United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975), in the circumstance of “outside influence” improperly brought to bear upon a juror, see Haley v. Blue Ridge Transfer Co., 802 F.2d 1532 (4th Cir.1986), when there is an improper communication from outside the jury room, from whatever source. However, our Court of Appeals has not adopted such a rigid standard for the “extraneous information” circumstance but has left it to the district court to determine “the nature of what has been infiltrated and the probability of prejudice.” United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). Indeed, it has stated “that the trial court’s post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on ‘a hypothetical average juror.’” United States v. Calbas, 821 F.2d 887, 896 n. 9 (2d Cir.1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1114, 99 L.Ed.2d 275 (1988). By that objective standard and based upon the factors already set forth, it is concluded that the extraneous information did not prejudice the jurors in such a fashion as to require a new trial. A second basis of jury taint or improper prejudice has been raised. After the jury’s verdict for plaintiff in excess of $13,-000,000 in the Tabolt case, the first special verdict submitted to the jury, and just prior to their discharge for the evening, the Court praised the jury for completing their deliberations in the first case and on the manner in which they had conducted themselves during both the trial" }, { "docid": "23190482", "title": "", "text": "v. Nix, 465 F.2d 90, 95 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972); 3 C. Wright, Federal Practice & Procedure § 832 at 334 (1969) (continuance may be necessary, since defendant not required to waive constitutional privilege to be tried in district of crime — assuming this guarantee applies to state proceedings, see Zicarelli v. Gray, 543 F.2d 466, 478-79 (3d Cir. 1976)). . Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C., provides: (a) Delayed petitions. A petition may be dismissed if it appears that the state . has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. . As the court in Haldeman observed, though the Supreme Court has employed the vehicle or rhetoric of presumptive prejudice to overturn other convictions, each of these cases has either “toned on factors other than [or in addition to] pretrial publicity or [has actually] involved the Court in an examination to determine whether the trial was in fact unfair.” 559 F.2d at 61 n.32 (emphasis added). E. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (involved massive publicity during trial, as well as before, and a “carnival atmosphere” that permeated the proceedings); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (inherently prejudicial situation presumed from constant operation of cameras and televising of proceedings during trial, in addition to pretrial publicity); Turner v. Louisiana, 379 U.S. 466, 84 S.Ct. 972, 11 L.Ed.2d 969 (1965) (prejudice presumed from continual personal contact with jurors by crucial witnesses, deputy sheriffs, during trial and deliberations); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (court reviewed voir dire transcript and found actual jury prejudice). . Though petitioner states in his brief, p. 35 n.21, that the News was" }, { "docid": "17797375", "title": "", "text": "particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Id. In determining whether a fair and unbiased jury was empaneled, an appellate court is obligated to make an independent evaluation of the special circumstances involved in the case. United States v. Williams, 568 F.2d 464, 469 (5th Cir. 1978); United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). It has long been recognized as a general rule that a defendant, in order to establish a deprivation of due process, must show that potential jurors were actually prejudiced by the pretrial publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Calley v. Callaway, 519 F.2d 184, 204 (5th Cir. 1975); Gordon v. United States, 438 F.2d 858, 874 (5th Cir. 1971). This burden of proof requires a showing that community prejudice actually invaded the jury box infecting the opinions of the prospective jurors. United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). However, when the defendant proffers evidence of pervasive community prejudice in the form of highly inflammatory publicity or intensive media coverage, prejudice is presumed and there is no further duty to establish actual bias. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Pamplin v. Mason, 364 F.2d 1, 4 — 5 (5th Cir. 1966). As this court stated in Pamplin: Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial" }, { "docid": "6354434", "title": "", "text": "plea agreement could not have prejudiced defendants), cert. denied, — U.S. -, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992); United States v. DeLarosa, 450 F.2d 1057, 1061-62 (3d Cir.1971) (four jurors were exposed to news media reports of shooting into home of government's chief witness), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 and 405 U.S. 957, 92 S.Ct. 1189, 31 L.Ed.2d 236 (1972). Moreover, as observed in Government of Virgin Islands v. Gereau, 523 F.2d 140, 151 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), \"[tjhough 'the specific guarantees of an impartial jury and of confrontation,' as well as 'the more general one of due process,’ proscribes consideration of specific extra-record facts about the case on trial, it is not necessary that the jurors be ‘totally ignorant about a’ case.” Id. (quoting United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971)). . The argument with respect to the television broadcasts likewise fails. In addition to conceding that the television segments \"did not mention Simone or the trial,” Simone makes only bald allegations that \"the facts surrounding both shows, if viewed by the jurors, could have had a devastating prejudicial effect on the outcome of this case.” Appellants’ Reply Br. at 25. Simone does not put forth any factual or legal analysis explaining the relevance of these two media segments to the issue before the court and, therefore, we have not addressed them in detail. . We find the challenge to the in camera voir dire procedure to be without merit. The particular method of conducting voir dire is left to the sound discretion of the district court. See United States v. Resko, 3 F.3d 684, 688 (3d Cir.1993); United States v. Thornton, 1 F.3d 149, 155 (3d Cir.), cert. denied, -U.S. -, 114 S.Ct. 483, 126 L.Ed.2d 433 (1993). Here, the district court held in camera interviews with fifteen jurors (including alternates), who testified under oath and in the presence of the defendants and" }, { "docid": "880142", "title": "", "text": "“accused shall enjoy the right ... to be confronted with the witnesses against him . .. and to have the Assistance of Counsel for his defense.” . In several cases the court has reversed state court convictions without a showing that specific extra-record facts reached a jury during its deliberations. The cases have involved situations where there has been such pervasive pre-trial publicity that it could be presumed that the jury’s verdict was based on either pre-judgment of the defendant or consideration of extraneous facts. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). . Bulger v. McClay, 575 F.2d 407, 411 (2d Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978); Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). See also Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971). . Government of Virgin Islands v. Gereau, 523 F.2d 140, 150 (3rd Cir. 1975) cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976) (“consideration by the jury of extra-record facts about the case ... [is] prima facie incompatible with the Sixth Amendment.”); United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972) ; Farese v. United States, 428 F.2d 178, 179 (5th Cir. 1970). . The Fifth Circuit has referred metaphorically to extraneous evidence as “the dagger of hidden evidence.” United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975). . The length of jury deliberations has been cited as a factor of some importance in Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (26 hours) and Dallago v. United States, 427 F.2d 546, 559 (D.C.Cir.1969) (5 days). In opposing the petitioner’s motion for a new trial the prosecution stated that the jury actually only deliberated for “possibly nine hours.” Presumably the prosecution meant that this nine hour" }, { "docid": "21844286", "title": "", "text": "1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). II. Change of Venue In determining whether to grant a motion for change of venue, the question is whether it is possible to select a fair and impartial jury. United States v. McDonald, 576 F.2d at 1354. We have reviewed the record of the voir dire examination and conclude that the district court did not abuse its discretion in refusing to grant a change of venue. See United States v. Flores-Elias, 650 F.2d 1149, 1150 (9th Cir.), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1981). The fact that pretrial publicity had been great and that many of the prospective jurors were acquainted with some of the facts of the case is insufficient to require a change of venue so long as the jurors are able to set to one side any impressions gained from the publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Silverthorne v. United States, 400 F.2d 627, 638-639 (9th Cir.1968), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971). The voir dire demonstrates that the pretrial publicity was not so prejudicial as to create in the minds of the prospective jurors any preconceived notions regarding the guilt of any of the defendants that could not be set aside by the jurors. Thus, Irvin v. Dowd is clearly distinguishable. Nor do we find Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), or Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), apposite. This case does not present the extraordinary circumstances found to exist in Sheppard and Estes. Accordingly, we decline defendants’ invitation to infer “inherent prejudice” from the extensive publicity which preceded this trial. See United States v. Blanton, 719 F.2d 815, 832 (6th Cir.1983) (en banc), petition for cert. denied, — U.S. -, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1983). III. Challenges of Jurors for Cause The district court has broad discretion in ruling on challenges of jurors for cause. United States v. Le Pera," }, { "docid": "23116169", "title": "", "text": "v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952). . The traditional rule in such cases has been that there must exist a nexus between community prejudice and jury prejudice; there must be a showing that “prejudice found its way into the jury box.” Pamplin v. Mason, 364 F.2d 1, 5 (5 Cir. 1966). Hale v. United States, 5 Cir., 1970, 435 F.2d 737, 746, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). . See Sheppard v. Maxwell, supra; Estes v. Texas, supra; Rideau v. Louisiana, supra; Marshall v. United States, supra; see also Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), and Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (improper contact with or influence on jurors during trial.) . Compare Sheppard v. Maxwell, supra, where newspaper headlines asked “Why Isn’t Sam Sheppard in Jail?” and urged “Quit Stalling — Bring Him In” until Sheppard was later arrested and indicted. . Compare Sheppard v. Maxwell, supra; Estes v. Texas, supra; Parker v. Gladden, supra; Turner v. Louisiana, supra; Marshall v. United States, supra; United States v. Ratten-ni, 2 Cir., 1973, 480 F.2d 195. . The press did little right, in the district judge’s view. ABC television was criticized for its broadcast of November 18, 1969, because an interview conducted in front of a map of Vietnam “on which blotches of blood appeared, obviously . . . accentuatefed] the horror of the story.” 382 F.Supp. at 659. Two days later, CBS-TV broadcast some pictures of the massacre, and was castigated by the court because" }, { "docid": "23034025", "title": "", "text": "e. g., Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. This danger to fair trials is most acute when facts which have not been tested by the trial process have been intentionally communicated directly to the jurors. Thus, for example, we held in Paz v. United States, 5 Cir. 1972, 462 F.2d 740, cert. denied, Jackson v. United States, 414 U.S. 820, 94 S.Ct. 47, 38 L.Ed.2d 52, that where books on drug problems and drug traffic were discovered to be in the jury room during the jury’s deliberations in a narcotics case, the defendants were entitled to a new trial “unless it [could] be said that there [was] no reasonable possibility that the books affected the verdict.” And in United States ex rel. Owen v. McMann, 2 Cir. 1970, 435 F.2d 813, cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646, the Second Circuit affirmed a trial court’s grant of habeas relief to a state prisoner where one or some of the convicting jury members had reported to other jurors extrinsic facts regarding the defendant’s past. See also Parker v. Gladden, 1966, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (communication between bailiff and jury regarding defendant); Remmer v. United States, 1954, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (apparent attempt to bribe juror, followed by FBI interrogation); United States v. Thomas, 7 Cir. 1972, 463 F.2d 1061 (newspaper article in jury room); Downey v. Peyton, 4 Cir. 1971, 451 F.2d 236 (discussion among jurors of extrinsic evidence regarding defendant’s conduct in other affairs); United States v. Pittman, 9 Cir. 1971, 449 F.2d 1284 (government witness operating tape recorder in jury room); Farese v. United States, 5 Cir. 1970, 428 F.2d 178 (jury discovery of $750 in cash in exhibit, crime charged involved monetary gain); Morgan v. United States, 5 Cir. 1967, 380 F.2d 915 (conversation between juror and non-juror regarding defendant);" }, { "docid": "880141", "title": "", "text": "a far better position to evaluate the credibility of the witnesses than we are now, reviewing a cold record eight years after the trial. We conclude that there is a reasonable possibility that the extrinsic evidence affected the verdict. Accordingly, the petitioners’ writ of habeas corpus must be granted unless the State of California elects to grant a new trial within sixty days. REVERSED. . The court noted in Chapman: There is little, if any difference between .. . “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.\" 386 U.S. at 24, 87 S.Ct. at 826 (emphasis added). . Such a test might conceivably be based upon the supervisory powers of the court. See Murphy v. Florida 421 U.S. 794, 797-98, 95 S.Ct. 2031, 2034-35, 44 L.Ed.2d 589 (1975). . The sixth amendment to the constitution provides in part that an “accused shall enjoy the right ... to be confronted with the witnesses against him . .. and to have the Assistance of Counsel for his defense.” . In several cases the court has reversed state court convictions without a showing that specific extra-record facts reached a jury during its deliberations. The cases have involved situations where there has been such pervasive pre-trial publicity that it could be presumed that the jury’s verdict was based on either pre-judgment of the defendant or consideration of extraneous facts. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). . Bulger v. McClay, 575 F.2d 407, 411 (2d Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978); Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). See also Downey v. Peyton, 451" }, { "docid": "2565373", "title": "", "text": "criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on evidence presented in court.’ Id'. In determining whether a fair and unbiased jury was empaneled, an appellate court is obligated to make an independent evaluation of the special circumstances involved in the case. United States v. Williams, 568 F.2d 464, 469 (5th Cir. 1978); United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). It has long been recognized as a general rule of the defendant, in order to establish a deprivation of due process, must show that potential jurors were actually prejudiced by the pretrial publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Calley v. Callaway, 519 F.2d 184, 204 (5th Cir. 1975); Gordon v. United States, 438 F.2d 858, 874 (5th Cir. 1971). This burden of proof requires a showing that community prejudice actually invaded the jury box infecting the opinions of the prospective jurors. United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). However, when the defendant proffers evidence of pervasive community prejudice in the form of highly inflammatory publicity or intensive media coverage, prejudice is presumed and there is no further duty to establish actual bias. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Pamplin v. Mason, 364 F.2d 1, 4-5. (5th Cir. 1966). As this court stated in Pamplin: ‘Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial.’ 364 F.2d at 5. The" }, { "docid": "12452642", "title": "", "text": "gentlemen, if he walks out of this courtroom, this is a blank check, this is a blank cheek for this man to go out and commit a crime against you, against Judge O’Kelley, against your families, against your friends, and if he gets caught he can run down to Doctor Askren and get some— Record on Appeal, Vol. XII at 1924. At this point, appellant’s attorney objected and moved for a mistrial on the basis of improper closing argument. While the trial judge denied the motion, he did give the jury a cautionary instruction to disregard the line of argument made by the government. The same day the jury found appellant guilty on all counts. When a criminal defendant alleges that pretrial publicity precluded a trial consistent with standards of due process, it is the duty of a reviewing court to undertake an independent evaluation of the facts established in support of such an allegation. See Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Calley v. Callaway, 5 Cir. 1975, 519 F.2d 184; Hale v. United States, 5 Cir. 1970, 435 F.2d 737; Pamplin v. Mason, 5 Cir. 1966, 364 F.2d 1. The traditional measure of undue prejudice required that a clear nexus between community prejudice and jury opinion be demonstrated. ■ Under such a test, it would have been necessary for appellant Williams to show that community prejudice had in fact invaded the jury box, see Irvin v. Dowd, supra; Stroble v. California, 1952, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, and Williams has made no showing to this effect. More recent Supreme Court cases, however, hold that evidence of pervasive community prejudice dispenses with the requirement that actual jury prejudice be shown. See Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, 1965, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Turner v. Louisiana, 1965, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424; Rideau v. Louisiana, 1963, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. As indicated by a panel of" }, { "docid": "23319545", "title": "", "text": "not be exposed to a jury during deliberations. Any other conclusion would permit a jury to consider incriminating evidence that has not been subject to confrontation or cross-examination, in direct contravention of the Sixth Amendment’s guarantees. See, e.g., Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir.) (“Jury exposure to facts not admitted during trial violates the sixth amendment right to trial by jury by permitting evidence to reach the jury which has not been subjected to confrontation or cross-examination.”), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986); Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980) (“[Wjhen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence.”), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). On more than one occasion, we have noted that the Sixth Amendment protects against extra-record infiltration of jury deliberations. See Bulger v. McClay, 575 F.2d 407, 411 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978); Owen v. McMann, 435 F.2d 813, 816 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). Here, it is possible in the abstract that the district courts decision not to redact the disputed testimony after the close of evidence denied appellants the opportunity to confront the evidence against them. Again, appellants may have been prevented from exposing any inconsistencies that may have existed between McGauley’s state grand jury testimony and his in-court testimony about the Graham-Shuff murders. In addition, appellants were unable to introduce evidence that may have rebutted the disputed portions of McGauley’s state grand jury testimony, though that testimony paralleled his testimony at trial. Those appellants who were not indicted by the state grand jury for the Graham-Shuff murders argue that, had they been given the opportunity, they would at least have alerted the jury to that fact. However, we need not determine whether appellants’ Sixth Amendment rights were violated because we conclude" }, { "docid": "23116168", "title": "", "text": "Military Appeals, 34 N.Y.U.L.Rev. 861 (1959); Westmoreland, Military Justice — A Commander’s Viewpoint, 10 Am.Crim.L.Rev. 5 (1971). Another person involved in the military justice system on a day-to-day basis has commented, “During my year and a half as a military prosecutor, I have come to realize that the military criminal justice system is characterized by exacting fairness, frequently excessive leniency, and an obsessive regard for the rights of the accused.” Rehyansky, Military Law is to Law as . Juris Doctor, Dec. 1974, p. 15. See also Schlesinger v. Councilman, supra, 420 U.S. at 758, 95 S.Ct. at 1313; Id. at 765 n. 3, 95 S.Ct. 1316 n. 3 (Brennan, J., dissenting); J. Bishop, Justice Under Fire 137 (1974); Bishop, supra, 61 Colum.L.Rev. at 56-57 & n. 87; Quinn, Some Comparisons Between Courts-Martial and Civilian Practice, 15 U.C.L.A.L. Rev. 1240 (1968); Note, supra, 76 Yale L.J. at 389-390; Note, supra, 69 Colum.L.Rev. at 1265; Note, The Court of Military Appeals and the Bill of Rights: A New Look, 36 Geo.Wash. L.Rev. 435 (1967). . See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952). . The traditional rule in such cases has been that there must exist a nexus between community prejudice and jury prejudice; there must be a showing that “prejudice found its way into the jury box.” Pamplin v. Mason, 364 F.2d 1, 5 (5 Cir. 1966). Hale v. United States, 5 Cir., 1970, 435 F.2d 737, 746, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). . See Sheppard v. Maxwell, supra; Estes v. Texas, supra; Rideau v. Louisiana, supra; Marshall v." }, { "docid": "6354433", "title": "", "text": "court’s voir dire did not elicit sufficient information to confirm or dispel the presence of suggested prejudice among the jury, we granted a new trial. Waldorf can be readily distinguished by our conclusion there that the news article was indeed prejudicial. Nor does our recent decision in Government of Virgin Islands v. Weatherwax, 20 F.3d 572 (3d Cir.1994), assist Simone's argument. In Weatherwax, unlike the somewhat benign instances of negative publicity cited by Simone, a newspaper, in both a banner headline and in the text of the stray, misquoted the defendant's testimony. The inaccurate reporting had the obviously prejudicial effect of defeating Weatherwax’s claim of self-defense to a murder charge. Also, in Weath-erwax the district court did not conduct any voir dire to evaluate the prejudicial article's possible impact on the jury and resulting taint to the trial. Id. at 580. Indeed we have previously held that media coverage more explicit than that at issue in this case was not prejudicial. See United States v. Gilsenan, 949 F.2d 90 (3d Cir.1991) (media coverage of failed plea agreement could not have prejudiced defendants), cert. denied, — U.S. -, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992); United States v. DeLarosa, 450 F.2d 1057, 1061-62 (3d Cir.1971) (four jurors were exposed to news media reports of shooting into home of government's chief witness), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 and 405 U.S. 957, 92 S.Ct. 1189, 31 L.Ed.2d 236 (1972). Moreover, as observed in Government of Virgin Islands v. Gereau, 523 F.2d 140, 151 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), \"[tjhough 'the specific guarantees of an impartial jury and of confrontation,' as well as 'the more general one of due process,’ proscribes consideration of specific extra-record facts about the case on trial, it is not necessary that the jurors be ‘totally ignorant about a’ case.” Id. (quoting United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971)). . The argument with respect to the television" }, { "docid": "23034024", "title": "", "text": "evidence must not be taken from its scabbard for the first time in the jury room to wound the defendant; and unless its piercing effect is only skin deep and without prejudice to the anatomy of the trial, we must apply a constitutional salve. I The modern jury is conceived of as an institution that determines the merits of a case solely on the basis of the evidence developed before it in the adversary arena. As Justice Holmes observed in Patterson v. Colorado, 1907, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881, “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Accordingly, courts have been continually sensitive to the jeopardy to a criminal defendant’s Sixth Amendment rights posed by any jury exposure to facts collected outside of trial. This is the premise, for example, of the cases involving adverse publicity. See, e. g., Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. This danger to fair trials is most acute when facts which have not been tested by the trial process have been intentionally communicated directly to the jurors. Thus, for example, we held in Paz v. United States, 5 Cir. 1972, 462 F.2d 740, cert. denied, Jackson v. United States, 414 U.S. 820, 94 S.Ct. 47, 38 L.Ed.2d 52, that where books on drug problems and drug traffic were discovered to be in the jury room during the jury’s deliberations in a narcotics case, the defendants were entitled to a new trial “unless it [could] be said that there [was] no reasonable possibility that the books affected the verdict.” And in United States ex rel. Owen v. McMann, 2 Cir. 1970, 435 F.2d 813, cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d" }, { "docid": "23116080", "title": "", "text": "a fair and impartial trial “is the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources.” Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); see Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1970). The general rule is that a defendant has the burden on appeal of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961); Reynolds v. United States, 98 U.S. 145, 156-157, 25 L.Ed. 244 (1879). Other Supreme Court decisions have reversed convictions and dispensed with the requirement of showing actual prejudice in the jury box in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. See Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1966). The Supreme Court has noted that generalizations are not helpful, and that “each case must turn on its special facts.” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959); see United States. v. Schrimsher, 5 Cir., 1974, 493 F.2d 848, 854; Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, 873, cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 77; Hale v. United States, 5 Cir., 1970, 435 F.2d 737, 746, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Additionally, we must review the merits of the prejudicial publicity claim. Sheppard v. Maxwell, supra, 384 U.S. at 362, 86 S.Ct. at 1522; Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. at 1643; Hale v. United States, supra, 435 F.2d at 746; Gawne v. United States, 9 Cir., 1969, 409 F.2d 1399, 1401, cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970); Margoles v. United States, 7 Cir., 1969, 407 F.2d 727, 730-731, cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24" }, { "docid": "558407", "title": "", "text": "the petitioner’s allegations, if proved, would establish the right to habeas corpus relief. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782 (1963); Birt, 725 F.2d at 591 (quoting Townsend). In evaluating a request for a hearing a court must “consider the allegations of the defendant’s habeas petition and supplement the petition with those facts undisputed on the record below.” Birt, 725 F.2d at 591; see Cronnon v. Alabama, 587 F.2d 246, 249 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). Accordingly, we must first examine the allegations in the habeas corpus petition and the undisputed facts in the record before us in an effort to ascertain whether each issue states a constitutional violation. I. Publicity During the Trial. It is well established that prejudicial publicity may deprive a criminal defendant of the constitutional right to a fair trial. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); United States v. Williams, 568 F.2d 464 (5th Cir.1978). The eases dealing with prejudicial publicity are divided into three categories: pretrial publicity, see, e.g., Coleman v. Zant, 708 F.2d 541 (11th Cir.1983); Calley v. Callaway, 519 F.2d 184 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976), publicity during the trial, see, e.g., United States v. Goodman, 605 F.2d 870 (5th Cir.1979); United States v. Williams, 568 F.2d 464 (5th Cir.1978), and the “media circus” involving publicity both before and during trial. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Two standards guide our consideration of whether publicity rises to the level of a constitutional violation: “actual jury prejudice” and “presumed prejudice.” See, e.g., Coleman, 708 F.2d at 544-45. The presumed prejudice criterion has been applied in two types of cases. First, prejudice is presumed under certain circumstances in federal criminal convictions. See, e.g., Marshall v." } ]

[ { "docid": "11853897", "title": "", "text": "of which the employee is entitled upon work-injury to receive longshoremen’s compensation from the borrowing employer (while the latter is consequently entitled to claim that such compensation remedy bars the employee’s suit in tort against him). Hall v. Diamond M Company, 732 F.2d 1246, 1249 (5th Cir. 1984); Gaudet v. Exxon Corporation, 562 F.2d 351, 355 (5th Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978); Ruiz v. Shell Oil Company, 413 F.2d 310, 312-13 (5th Cir.1969). As summarized in Hall, supra, 732 F.2d at 1249: Among the considerations for determining whether a servant has been borrowed by another employer are: (1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee? Ruiz, supra, the fountainhead of this line of circuit jurisprudence, stated that, although “[t]he factor of control is perhaps the most universally accepted standard for establishing an employer-employee relationship”, “no one of these factors \\i.e., the criteria above-enumerated], or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.” 413 F.2d at 321. Recognizing this principle, we have nevertheless indicated, in different cases, that certain of these factors may be more important than others, at least in the light of the facts then before the court. Thus, in Hall, supra, we gave special weight to control over the employee, 732 F.2d at 1249 (citing the statement in Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th Cir.1981) that this is “[t]he central question in borrowed servant cases”). The furnishing of tools" } ]

[ { "docid": "23087783", "title": "", "text": "he may look to it as his employer even though, on the job, he worked under the direction and control of the principal contractor. Id. at 224-25. When the contractual or operational relationship between those who direct a seaman’s work results in his being on the payroll of one company and obeying the behest of another, the injured worker is not required to bear the risk that he will not select the proper target for his claim. At trial, Baker did not contend that Raymond was his nominal, or contractual employer, or that the contract of employment should be reformed, or that Raymond was estopped to deny that it stood in an employer’s role to him. The first interrogatory submitted to the jury assumed that Raymond was not his employer, and asked whether Raymond had borrowed Baker from his contractual employer, assumed presumably to be RSA. An injured worker may show that he was a borrowed servant at the time of his injury by establishing that the employer against whom recovery is sought had “ ‘the power to control and direct the [servant] in the performance of [his] work.’ ” Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978) (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 221-22, 29 S.Ct. 252, 254, 53 L.Ed. 480, 483-84 (1909)). This circuit has established several criteria for determining when a servant has been borrowed by another employer: (1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the" }, { "docid": "11853898", "title": "", "text": "for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee? Ruiz, supra, the fountainhead of this line of circuit jurisprudence, stated that, although “[t]he factor of control is perhaps the most universally accepted standard for establishing an employer-employee relationship”, “no one of these factors \\i.e., the criteria above-enumerated], or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.” 413 F.2d at 321. Recognizing this principle, we have nevertheless indicated, in different cases, that certain of these factors may be more important than others, at least in the light of the facts then before the court. Thus, in Hall, supra, we gave special weight to control over the employee, 732 F.2d at 1249 (citing the statement in Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th Cir.1981) that this is “[t]he central question in borrowed servant cases”). The furnishing of tools and the place of work, whether the payroll employer has actually terminated his relationship with the employee now working on another’s premises, and the duration of the “borrowing” relationship and the consequent acquiescence or not of the employee, have been regarded as equally significant factors in others of our decisions. Gaudet v. Exxon Corpo ration, 562 F.2d 351, 357 (5th Cir.1977); Dugas v. Pelican Construction Company, Inc., 481 F.2d 773, 778 (5th Cir.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973) (according special weight to the contractual agreement between the payroll employer and the borrowing employer that expressly negated any borrowed employee relationship). II. On the basis of the factual showing, the district court granted summary judgment dismissing Alday’s maritime tort suit against Patterson, holding that Alday was Patterson’s borrowed employee. “In a ruling on a motion for summary judgment, ‘the court must indulge every reasonable inference from those facts in favor of the party opposing the motion.’ ” Hall, supra, 732 F.2d at 1249-50 (emphasis the court’s). A grant of" }, { "docid": "23217076", "title": "", "text": "“borrowed employee” status or at least was a draw. Thus, the court decided the issue of borrowed employee after full trial. We do not upset a district court’s factual findings unless they are clearly erroneous. In Ruiz v. Shell Oil, this Court suggested the nine factors to be evaluated in determining whether the “borrowed employee” doctrine applies: il) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? See also Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 616-17; West v. Kerr-McGee Corp., 765 F.2d 526, 530 (5th Cir.1985); Alday v. Patterson Truck Line, Inc., 750 F.2d at 376; Hall v. Diamond M Co., 732 F.2d at 1249; Gaudet v. Exxon, 562 F.2d at 355. The first factor, the question of who has control over the employee and the work he is performing, has been considered the central issue of “borrowed employee” status in some of our cases, e.g. Hebron v. Union Oil Co., 634 F.2d at 247, although not necessarily determinative. In the case at bar, Amoco clearly had control over Me-laneon and his work: Melancon took orders only from Amoco personnel who told him what work to do, and when and where to do it. Beraud gave no instructions to Me-lancon except to go to the Amoco field and perform the work requested by Amoco personnel. The fact that Melancon had specialized welding skills he utilized in most of his work and none of the Amoco personnel had similar welding expertise does not bar a finding of “borrowed employee” status. Huff v. Marine Tank Testing Corp.," }, { "docid": "16051328", "title": "", "text": "in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee?” The district court, relying on Hebron v. Union Oil Co., 634 F.2d 245 (5th Cir.1981) and Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969), found control over the employee’s activities to be most important. The deposition testimony indicates that although West was not always under direct supervision, he was answerable to Kerr-McGee supervisory personnel. The record also reflects without dispute that Kerr-McGee could have dismissed West from work on the platform, although it could not have fired him as a Berry employee. Based on this evidence, the court found that Kerr-McGee had much the same control over West as did the employer in He-bron, where a directed verdict for the defendant was affirmed. As we recognized in Alday, however, neither control nor any other single answer to the inquiries “is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.” 750 F.2d at 376, quoting Ruiz, 413 F.2d at 312. In Alday, despite facts indicating that the defendant, Patterson, had exercised supervisory control over the assertedly borrowed plaintiff, Alday, we reversed a summary judgment for Patterson because other factors weighed in favor of Alday. The most significant of these was a provision in the contract between Patterson and Al-day’s nominal employer, Atchafalaya, which, like the contract between Kerr-McGee and Berry Brothers, recited that under no circumstances would an Atchafa-laya employee be deemed a Patterson employee. Alday recognized that in Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), we affirmed a summary judgment for the defendant despite the existence of a similar contract clause. In Gaudet, though, all factors other than the contract overwhelmingly established the plaintiffs’ borrowed-employee status. The Gaudet plaintiffs had worked on an Exxon platform" }, { "docid": "5555898", "title": "", "text": "is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.), reh’g granted on other grounds, 841 F.2d 572 (5th Cir.1988). No single factor, or combination of them, is determinative; although, in many of our prior cases, this court has considered the first factor — control—to be the central factor. See, e.g., Melancon, 834 F.2d at 1245, Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 616-17 (5th Cir.), cert. denied, 479 U.S. 838, 107 S.Ct. 141, 93 L.Ed.2d 83 (1986). The issue of borrowed employee status is a “ ‘matter of law’ for the district court to determine,” Melancon, 834 F.2d at 1244, but some cases involve factual disputes on the issue of borrowed employee status and require findings by a fact-finder. See id. at 1245 n. 13; West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th Cir.1985); Alday v. Patterson Truck Lines, Inc., 750 F.2d 375, 378 (5th Cir.1985). In Melancon, West, and Alday, factual findings were necessary concerning the third borrowed employee factor— whether the original employer and borrowing employer had an understanding or agreement on the issue of employee status. In the instant case, factual findings concerning the first and third factors should have been made prior to the district court’s determination of borrowed employee status. A brief discussion of the nine factors follows. (1)Who had control? At trial, the parties presented conflicting testimony regarding who instructed Brown on how, where, and when to clean the mud. Brown testified that during his first hitch with Union, he was supervised by a Gulf Inland employee, Jimmy Funge. Brown" }, { "docid": "23217075", "title": "", "text": "law tort actions against the employer, and Amoco was the employer if Melancon was Amoco’s “borrowed employee.” Alday v. Patterson Truck Line, Inc., 750 F.2d 375 (5th Cir.1985); Hebron v. Union Oil Co. of California, 634 F.2d 245, 248 (5th Cir.1981); Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed. 2d 414 (1978). “[T]he issue of whether a relationship of borrowed servant existed is a matter of law” for the district court to determine. Gaudet v. Exxon, 562 F.2d at 357; Ruiz v. Shell Oil Co., 413 F.2d at 314. See also Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615, 617 (5th Cir.1986), cert. denied, — U.S.—, 107 S.Ct. 141, 93 L.Ed. 2d 83 (1986). There are, however, nine separate factual inquiries underlying “borrowed employee” status. In its analysis, the district court considered all nine factors and found the evidence clearly indicating “borrowed employee” status on all but one. On this one factor, the district court found the evidence weighed in favor of “borrowed employee” status or at least was a draw. Thus, the court decided the issue of borrowed employee after full trial. We do not upset a district court’s factual findings unless they are clearly erroneous. In Ruiz v. Shell Oil, this Court suggested the nine factors to be evaluated in determining whether the “borrowed employee” doctrine applies: il) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? See also Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 616-17; West v. Kerr-McGee Corp.," }, { "docid": "6183571", "title": "", "text": "REAVLEY, Circuit Judge: Donald Billizon sued Conoco, Inc. to recover damages for injuries he suffered while working on an offshore platform operated by Conoco. At the time of his accident, Billizon was employed by Danos & Curóle Marine Contractors, Inc. (D & C), which supplies workers to oil and gas producers. D & C had assigned Billizon to work for Conoco as a pumper. The district court entered summary judgment in favor of Conoco on the ground that Billizon was Conoco’s “borrowed employee” — granting Conoco tort immunity under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(a). We affirm. To determine borrowed-employee status, we consider nine factors: (1) Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation? (2) Whose work was being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and f)lace for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir.1993). The question of borrowed-employee status is a question of law for the district court to determine. But in some cases, factual disputes must be resolved before the district court can make its legal determination. See, e.g., id. at 679 (factual issues concerning factors 1 and 3); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 n. 13 (5th Cir.) (factual issue concerning factor 3), reh’g granted on other grounds, 841 F.2d 572 (5th Cir.1988). While working for Conoco, Billizon maintained the flow of oil and gas from a production platform. John Jackson, a Conoco employee, supervised the platform on which Bil-lizon worked. When Billizon arrived on the job, a Conoco employee familiarized him with the work procedures. Billizon attended daily tailgate meetings conducted by Jackson" }, { "docid": "23217081", "title": "", "text": "v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 618, Hebron v. Union Oil Co., 634 F.2d at 247. Finally, we agree the district court was correct in finding that Amoco paid Melancon’s wages via Beraud based on the number of hours Melancon worked for Amoco. The fact that Beraud kept a percentage of the amount Amoco was charged is not relevant. Amoco furnished the funds from which Beraud paid Melancon, and this is the determinative inquiry for this factor. Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 618. The summary is that the district court conducted a thorough “borrowed employee” status analysis under the nine factor Ruiz test. It was not clearly erroneous in any of its factual findings, and it correctly concluded that Melancon was Amoco’s “borrowed employee” for LHWCA purposes. IV. Does LHWCA § 905(a), as Amended in 1984, Preclude Mr. Melancon from Being a “Borrowed Employee\" of Amoco? The Melancons also argue that Amoco can be considered Melancon’s employer, responsible for his worker’s compensation under LHWCA § 904(a) and thus shielded from tort liability under LHWCA § 905(a), only if Melancon’s nominal employer, Ber-aud, had failed to secure Melancon’s worker’s compensation coverage and Amoco did secure compensation coverage. They claim the 1984 amendments to § 904(a) and to § 905(a) allow a “borrowing employer” to utilize the tort immunity of § 905(a) only if the nominal employer failed to provide for worker’s compensation for the “borrowed employee,” and the “borrowing employer” did in fact secure the worker’s compensation insurance instead. They claim this did not happen here since Beraud secured Mr. Melancon’s worker’s compensation insurance through American General. See Doucet v. Gulf Oil Corp., 783 F.2d 518, 522 (5th Cir.1986). We rejected this argument in West v. Kerr-McGee, supra, and in subsequent cases have continued to follow this holding. Alexander v. Chevron, U.S.A., 806 F.2d 526 (5th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 3229, 97 L.Ed.2d 735 (1987); Capps v. N.L. Baroid-NL Industries, Inc., supra; Doucet v. Gulf Oil Corp., supra. These cases hold that the 1984 amendments to LHWCA §§ 904(a) and 905(a)" }, { "docid": "5555897", "title": "", "text": "instructions. After taking time off during the Christmas holidays, Brown returned to the Union job for his second hitch. During this period, he worked at night, unsupervised, as the only roustabout cleaning the platform. When he returned for his second hitch, Brown received no new instructions regarding his cleaning work, but continued to work at night under the cleaning instructions he received during his first hitch. On January 4, 1990, during the second hitch, Brown was .injured while working on the Union platform. Union provided Brown’s transportation, food, lodging, and tools. Union did not have the right to terminate Brown’s employment with Gulf Inland, but it had the right to terminate Brown’s work relationship with Union. Gulf Inland paid Brown and provided him with employee benefits. His pay was based on time tickets that had to be verified daily by Union. II. DISCUSSION To determine borrowed employee status, we consider nine factors: (1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.), reh’g granted on other grounds, 841 F.2d 572 (5th Cir.1988). No single factor, or combination of them, is determinative; although, in many of our prior cases, this court has considered the first factor — control—to be the central factor. See, e.g., Melancon, 834 F.2d at 1245, Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 616-17 (5th Cir.), cert. denied, 479 U.S. 838, 107 S.Ct. 141, 93 L.Ed.2d 83 (1986). The issue of borrowed employee" }, { "docid": "23217074", "title": "", "text": "Longshoremen and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. The district court heard all the evidence on the “borrowed employee” issue, and on November 3, 1986, issued oral findings holding that Mr. Melancon had been a “borrowed employee” of Amoco, and his exclusive remedy against Amoco for his injuries was the LHWCA benefits. Amoco moved for involuntary dismissal based upon this holding. The district court granted Amoco’s motion and dismissed the Melaneons' suit against Amoco. The Me-laneons and American General appeal the district court’s finding of “borrowed employee” status. III. Was Daniel Melancon a “Borrowed Employee” of Amoco? All the parties agreed that the question of Mr. Melancon’s status as a “borrowed employee” of Amoco constituted a threshold issue for the Melaneons’ recovery from Amoco. If Mr. Melancon was found to be the “borrowed employee” of Amoco, he was covered by the LHWCA, entitling him to worker’s compensation under this Act. Worker’s compensation under the LHWCA is the exclusive remedy for an employee against his employer because the Act bars all common law tort actions against the employer, and Amoco was the employer if Melancon was Amoco’s “borrowed employee.” Alday v. Patterson Truck Line, Inc., 750 F.2d 375 (5th Cir.1985); Hebron v. Union Oil Co. of California, 634 F.2d 245, 248 (5th Cir.1981); Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed. 2d 414 (1978). “[T]he issue of whether a relationship of borrowed servant existed is a matter of law” for the district court to determine. Gaudet v. Exxon, 562 F.2d at 357; Ruiz v. Shell Oil Co., 413 F.2d at 314. See also Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615, 617 (5th Cir.1986), cert. denied, — U.S.—, 107 S.Ct. 141, 93 L.Ed. 2d 83 (1986). There are, however, nine separate factual inquiries underlying “borrowed employee” status. In its analysis, the district court considered all nine factors and found the evidence clearly indicating “borrowed employee” status on all but one. On this one factor, the district court found the evidence weighed in favor of" }, { "docid": "23217079", "title": "", "text": "case at bar, Beraud clearly understood that Melancon would be taking his instructions from Amoco, notwithstanding Provision 6 of the contract. Obviously parties to a contract cannot automatically prevent a legal status like “borrowed employee” from arising merely by saying in a provision in their contract that it cannot arise. We agree with the district court that there was an understanding between Beraud and Amoco sufficient to satisfy this factor. Melancon clearly acquiesced in his new work situation, the fourth factor under Ruiz. He knew when he began to work on Amoco’s offshore platforms in 1977 what his work conditions would be, and he made no complaint regarding these conditions to Beraud or to Amoco. The district court was not in error in finding that Beraud had, in effect, ceased control in its relationship with Melancon. This factor does not require a lending employer to sever completely its relationship with the employee, because such a requirement would effectively eliminate the “borrowed employee” doctrine. Capps v. N.L. Baroid-NL Industries, 784 F.2d at 617-18. “The emphasis when considering this factor should focus on the lending employer’s relationship with the employee while the borrowing occurs.” Id. Beraud’s control over Melancon was nominal at most while Melancon worked for Amoco. The factor asking who furnished the tools and the place of performance gave the district court some reason for concern. Beraud furnished Melancon his welding machine and related equipment, while Amoco furnished certain consumables, the place of performance, transportation to and from the place of work, food, lodging, etc. We have no problem in agreeing with the district court that the balance on this factor is in Amoco’s favor. The three remaining factors need only be mentioned briefly. Clearly the employment of Melancon by Amoco was over a considerable length of time. Melancon had worked primarily for Amoco for the seven years while he was with Beraud Enterprises prior to the accident. Amoco also had the right to discharge Melancon even though Amoco could not terminate Melan-con’s employment with Beraud. Amoco’s right to terminate Melancon’s services in the Amoco field satisfied this requirement. Capps" }, { "docid": "23451483", "title": "", "text": "work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? While the courts do not use a fixed test and do not decide the issue based on one factor, the courts place the most emphasis on the first factor, control over the employee. Id. at 312; see also Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th Cir. 1981) (per curiam). The district court decides the borrowed employee issue as a matter of law, Gaudet v. Exxon Corp., 562 F.2d 351, 357-58 (5th Cir.1977), and, if sufficient basic factual ingredients are undisputed, the court may grant summary judgment. Id. at 358-59. “Appellants cannot generate a factual dispute merely by contesting the conclusions reached by the court, rather they must show that genuine disputes exist over enough determinative factual ingredients to make a difference in this result.” Id. at 358. We find no genuine issue as to any of the facts concerning each factor; therefore the question for this court is whether the district court erred in finding, on the undisputed facts, that Capps was a borrowed employee. We turn now to a consideration of the relevant factors and the inferences to be drawn from each factor. The first, and most important, factor is: Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? Baroid clearly had control over Capps and his work. Capps and Blanchard both testified in their depositions that Baroid controlled Capps’ work. Capps also testified that Davis gave him no instructions concerning the work he was to perform at Baroid. Thus, the first factor supports the district court’s ruling. The second factor — Whose work" }, { "docid": "23451482", "title": "", "text": "such, his exclusive remedy against Baroid was compensation pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, and/or the Louisiana Worker’s Compensation Act, La.Rev.Stat.Ann. §§ 23:1021-1379 (West 1985 & Supp.1986). Capps appeals the district court’s grant of the motion for summary judgment. II. Capps alleges two reasons why the district court erred in granting the motion for summary judgment: (1) the summary judgment evidence does not support the district court’s ruling and (2) a 1984 amendment to section 905(a) of the LHWCA abolished the borrowed employee doctrine as it existed prior to 1984. A. Capps first argues that the district court erred in finding the summary judgment evidence sufficient to support its ruling that Capps was a borrowed employee. In Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir.1969), this court suggested nine factors to be evaluated in determining whether the borrowed employee doctrine applies. (1) Who has control over the employee and the work he is performing, be yond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? While the courts do not use a fixed test and do not decide the issue based on one factor, the courts place the most emphasis on the first factor, control over the employee. Id. at 312; see also Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th Cir. 1981) (per curiam). The district court decides the borrowed employee issue as a matter of law, Gaudet v. Exxon Corp., 562 F.2d 351, 357-58 (5th Cir.1977), and, if sufficient basic factual ingredients are undisputed, the court may grant summary judgment. Id. at 358-59. “Appellants" }, { "docid": "5555905", "title": "", "text": "status. (6) Who furnished the tools and place for performance? Union provided hoses, water, soap, transportation, food, and lodging. (7) Was the new employment over a considerable length of time? Brown worked on Union’s platform for one month prior to his accident. In Capps, this court noted that “[wjhere the length of employment is considerable, this factor supports a finding that the employee is a borrowed employee; however, the converse is not true.” 784 F.2d at 618. There, Capps’s injury occurred on his first day of work, and this court concluded that this seventh factor was neutral. Id. Similarly, in the instant case, this factor is neutral. (8) Who had the right to discharge the employee? Although Union did not have the right to terminate Brown’s employment with Gulf Inland, it had the right to terminate Brown’s work relationship with Union. This arrangement is sufficient to support a finding of borrowed servant status. Melancon, 834 F.2d at 1246; Capps, 784 F.2d at 618. (9) Who had the obligation to pay the employee? Gulf Inland paid Brown, but his pay was based on time tickets that had to be verified daily by Union. This procedure supports borrowed employee status. Alexander, 806 F.2d at 528. III. CONCLUSION As in West, the contract provision between the two employers weighs against borrowed employee status, and the remaining factors do not overwhelmingly show that Brown was a borrowed employee. Important factual questions need to be resolved, including: (1) Who gave Brown instructions on how and when to clean the platform? (2) What was the agreement or understanding between Union and Gulf Inland regarding borrowed employee status? See Melancon, 834 F.2d at 1245 & n. 13. Once these important factual issues have been resolved, the district court must determine, as a matter of law, whether Brown was Union’s borrowed employee. We express no opinion on the ultimate resolution of this issue at retrial. REVERSED and REMANDED. . However, in Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), this court deemphasized the control" }, { "docid": "12639152", "title": "", "text": "employees — even if a borrowed employee relationship existed — unless the subcontractor failed to secure compensation payments.” 765 F.2d at 529. However, it noted that another possible reading was “that the ‘shall be deemed’ language of the § 905(a) amendment refers only to ‘deeming’ a contractor the employer of a subcontractor’s employee when the contractor is not the employee’s true employer as well,” that is, when the employer was not the employee’s borrowing employer. Id. at 530. Since these contrary readings evidenced “latent ambiguities” in the statute, the court looked to the legislative history of the 1984 amendment. Finding that the only purpose of Congress was to overrule Washington Metro, and that there was no intent to overturn the borrowed servant cases decided under LHWCA, the West court held that the borrowed servant immunity defense was still available under LHWCA. Id. at 580. The Fifth Circuit has continued to adhere to West. See, e.g., Melancon v. Amoco Production Co., 834 F.2d 1238 (5th Cir.1988); Alexander v. Chevron, U.S.A., 806 F.2d 526 (5th Cir.1986), cert. denied, 483 U.S. 1005, 107 S.Ct. 3229, 97 L.Ed.2d 735 (1987); Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615 (5th Cir.1986), cert. denied, 479 U.S. 838, 107 S.Ct. 141, 93 L.Ed.2d 83 (1986); Doucet v. Gulf Oil Corp., 783 F.2d 518 (5th Cir. 1986), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986); see also 1A E. Jhirad, Benedict on Admiralty, § 34, 2-73 (1989) (suggesting that the borrowed servant doctrine is still viable under LHWCA). West’s reading of the legislative history is correct; there is nothing in the legislative history indicating that Congress intended to do anything other than overrule Washington Metro. H.R.Conf.Rep. No. 98-1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cong. & Admin.News 2734, 2774. That brief history does not support the proposition that Congress wished to upset the use of the borrowed servant doctrine as utilized by the Fourth and Fifth Circuit cases; this is an omission of some significance in light of the care taken in the legislative history to identify cases that Congress" }, { "docid": "16051327", "title": "", "text": "WMATA, Probst v. Southern Stevedoring Co., 379 F.2d 763 (5th Cir.1967). Indeed, this court has explicitly recognized that Probst, whose rule is codified in the 1984 amendments, does not foreclose the possibility that a general contractor may be an employer under the borrowed-servant doctrine. Champagne v. Penrod Drilling Co., 462 F.2d 1372 (5th Cir.1972), cert. denied, 409 U.S. 1113, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973). The committee language shows that Congress intended to do no more than restore the understanding that existed at the time of Ruiz, Probst, and Champagne. We conclude that the 1984 amendments have no bearing on the borrowed-employee issue before us. Ill -1- This court most recently summarized the inquiries relevant to whether a worker is a borrowed employee in Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th Cir.1985): “(1) Who has control over the employee and the work he is performing ... ? (2) Whose work is being performed? (3) Was there an agreement ... between the original and borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee?” The district court, relying on Hebron v. Union Oil Co., 634 F.2d 245 (5th Cir.1981) and Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969), found control over the employee’s activities to be most important. The deposition testimony indicates that although West was not always under direct supervision, he was answerable to Kerr-McGee supervisory personnel. The record also reflects without dispute that Kerr-McGee could have dismissed West from work on the platform, although it could not have fired him as a Berry employee. Based on this evidence, the court found that Kerr-McGee had much the same control over West as did the employer in He-bron, where a directed verdict for the defendant was affirmed. As we recognized in Alday, however, neither" }, { "docid": "20285130", "title": "", "text": "law for the district court to determine.” Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.), reh’g denied, 3 F.3d 441 (1993), cited in Lemaire, 2001 WL 872840, at *3-4; Hotard v. Devon Energy Corp., L.P., 2008 WL 2228922 (W.D.La.2008) (J. Melancon) and Magnon v. Forest Oil Corp., 2007 WL 2736612 (W.D.La.2007) (J. Melancon). However, “in some cases, factual disputes must be resolved before the district court can make its legal determination.” Billizon, 993 F.2d at 105. The Fifth Circuit has set out the following nine factors which must be considered in determining borrowed employee status: 1. Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation? 2. Whose work was being performed? 3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? 4. Did the employee acquiesce in the new work situation? 5. Did the original employer terminate his relationship with the employee? 6. Who furnished tools and place for performance? 7. Was the new employment over a considerable length of time? 8. Who had the right to discharge the employee? 9. Who had the obligation to pay the employee? Id., citing Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir.1993). The Fifth Circuit “has held many times that no single factor is determinative.” Id. at 106. However, the court has also stated the first factor is the “central issue” of borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.) amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12. This Court will now apply the facts of the instant case to each of the nine factors that must be considered in order to decide whether plaintiff and Mr. Chatelain are the borrowed employees of W & T. Although W & T and Baker advance similar arguments and have essentially joined in each other’s motions, the defendants seek very different relief." }, { "docid": "23087784", "title": "", "text": "‘the power to control and direct the [servant] in the performance of [his] work.’ ” Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978) (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 221-22, 29 S.Ct. 252, 254, 53 L.Ed. 480, 483-84 (1909)). This circuit has established several criteria for determining when a servant has been borrowed by another employer: (1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? Gaudet v. Exxon Corp., 562 F.2d at 355 (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969)). At the trial, Baker introduced virtually no evidence establishing any of these factors. Raymond’s evidence, uncontradicted by Baker, was that the master of the vessel, and its crew, were employed by RSA, the vessel was operated by RSA, and RSA paid Baker’s wages. Although Raymond owned the vessel, there was no evidence that those employees who were found to be negligent were Raymond employees. The record is equally silent on any borrowing of Baker himself by Raymond. If, as the borrowed servant doctrine assumes, we begin with the premise that Baker was an RSA employee, “the facts and inferences point so strongly and overwhelmingly” to the conclusion that Raymond did not later borrow Baker “that the Court believes that reasonable men could not arrive at a contrary verdict.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). Accordingly, we reverse the jury’s verdict on this issue and proceed to" }, { "docid": "5629050", "title": "", "text": "issue before us is whether the trial court erred in holding as a matter of law on the record before it that Hall was not a borrowed servant of Diamond M. We recently explained that “[t]he borrowed servant doctrine is the functional rule that places the risk of a worker’s injury on his actual rather than his nominal employer. It permits the injured worker to recover from the company that was actually directing his work. It may also determine which of the possible employers ultimately bears the cost of the injury.” Baker v. Raymond International, Inc., 656 F.2d 173, 178 (5th Cir.1981). Among the considerations for determining whether a servant has been borrowed by another employer are: (1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation? (2) Whose work is being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee? Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir.1977) (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir.1969)). Although “no one of these factors, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship ...” Ruiz v. Shell Oil Co., supra, 413 F.2d at 312, in Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th Cir.1981), we stated that “[t]he central question in borrowed servant cases is whether someone has the power to control and direct another person in the performance of his work.” In support of its motion for summary judgment, Diamond M argued that the following facts were established by the record: (1) plaintiff was an employee of Transocean; (2) Diamond M" }, { "docid": "23217080", "title": "", "text": "considering this factor should focus on the lending employer’s relationship with the employee while the borrowing occurs.” Id. Beraud’s control over Melancon was nominal at most while Melancon worked for Amoco. The factor asking who furnished the tools and the place of performance gave the district court some reason for concern. Beraud furnished Melancon his welding machine and related equipment, while Amoco furnished certain consumables, the place of performance, transportation to and from the place of work, food, lodging, etc. We have no problem in agreeing with the district court that the balance on this factor is in Amoco’s favor. The three remaining factors need only be mentioned briefly. Clearly the employment of Melancon by Amoco was over a considerable length of time. Melancon had worked primarily for Amoco for the seven years while he was with Beraud Enterprises prior to the accident. Amoco also had the right to discharge Melancon even though Amoco could not terminate Melan-con’s employment with Beraud. Amoco’s right to terminate Melancon’s services in the Amoco field satisfied this requirement. Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 618, Hebron v. Union Oil Co., 634 F.2d at 247. Finally, we agree the district court was correct in finding that Amoco paid Melancon’s wages via Beraud based on the number of hours Melancon worked for Amoco. The fact that Beraud kept a percentage of the amount Amoco was charged is not relevant. Amoco furnished the funds from which Beraud paid Melancon, and this is the determinative inquiry for this factor. Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d at 618. The summary is that the district court conducted a thorough “borrowed employee” status analysis under the nine factor Ruiz test. It was not clearly erroneous in any of its factual findings, and it correctly concluded that Melancon was Amoco’s “borrowed employee” for LHWCA purposes. IV. Does LHWCA § 905(a), as Amended in 1984, Preclude Mr. Melancon from Being a “Borrowed Employee\" of Amoco? The Melancons also argue that Amoco can be considered Melancon’s employer, responsible for his worker’s compensation under LHWCA § 904(a) and thus shielded" } ]

[ { "docid": "22077238", "title": "", "text": "identifies as features of the civil justice system many of those attributes of the criminal justice system on which the Supreme Court relied in holding that the First Amendment guarantees to the public and to the press the right of access to criminal trials in Globe Newspaper Co. v. Superior Court, supra and Richmond Newspapers, Inc. v. Virginia, supra. A presumption of openness inheres in civil trials as in criminal trials. We also conclude that the civil trial, like the criminal trial, “plays a particularly significant role in the functioning of the judicial process and the government as a whole.” Globe Newspaper Co. v. Superior Court, 457 U.S. at 606, 102 S.Ct. at 2620. From these authorities we conclude that public access to civil trials “enhances the quality and safeguards the integrity of the fact-finding process.” Id. It “fosters an appearance of fairness,” id., and heightens “public respect for the judicial process.” Id. It “permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.” Id. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs. Therefore, we hold that the “First Amendment embraces a right of access to [civil] trials ... to ensure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.” Id. at 604-05, 102 S.Ct. at 2619-20. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d at 1177-79. Although the right of access to civil trials is not absolute, nevertheless, as a First Amendment right it is to be accorded the due process protection that other fundamental rights enjoy. Accord, Globe Newspaper Co. v. Superior Court, 457 U.S. at 606, 102 S.Ct. at 2620; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 581, n. 18, 100 S.Ct. at 2830, n. 18; see also Tavoulareas v. Washington Post Co., 724 F.2d 1010, 1017 (D.C.Cir.1984); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d at 1179. Therefore, to limit the public’s access to civil trials there must be" } ]

[ { "docid": "8166292", "title": "", "text": "483-84, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (“[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance .... The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”); see also Alexander Meikle john, The First Amendment Is an Absolute, 1961 Sup.Ct. Rev. 245, 255 (“The First Amendment ... protects the freedom of those activities of thought and communication by which we ‘govern.’ ”). Though the Supreme Court originally recognized the First Amendment right of access in the context of criminal trials, see Richmond Newspapers, 448 U.S. 555, 100 S.Ct. 2814, the federal courts of appeals have widely agreed that it extends to civil proceedings and associated records and documents. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Autk, 684 F.3d 286, 305 (2d Cir.2011) (finding a right of access to administrative civil infraction hearings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984) (“We hold that the First Amendment does secure a right of access to civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (finding a right of access to litigation committee reports in shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.1983) (holding that the First Amendment limits judicial discretion to seal documents in a civil case). The California Supreme Court has also so held. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 86 Cal. Rptr.2d 778, 980 P.2d 337, 361 (1999). Though we have not expressly held that the First Amendment right of access encompasses civil cases, we have recognized a right of access to executions, documents related to a criminal defendant’s pretrial release, and criminal jury voir dire, among other proceedings. Cal. First Amendment Coal., 299 F.3d at 877 (executions); Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1519 (9th Cir.1988) (pretrial release documents); United States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir.1982) (voir dire). We have also applied the Press-Enterprise" }, { "docid": "4903605", "title": "", "text": "access to judicial proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court recognized a common law and first amendment right of access to criminal trials. Id. at 573, 580, 100 S.Ct. at 2825, 2829. Subsequently, the Court made it clear that the right of access to judicial proceedings is not limited to trials. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). While the Richmond Newspapers decision did not explicitly find a right of access in the civil context, Justice Burger, in his plurality opinion for the Court, noted that historically both criminal and civil trials have been presumptively open. Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17. The concurring opinions of Justices Brennan and Stewart also noted the potential application of the Court’s analysis in the civil context. Id. at 590, 599, 100 S.Ct. at 2834-35, 2839-40. This court agrees with the Sixth Circuit’s conclusion that the analysis in Richmond Newspapers applies to both civil and criminal proceedings. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). See also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir.1988) (recognizing public right of access to summary judgment proceedings in defamation suit); Publicker Indust., Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984) (recognizing public right of access to hearing on preliminary injunction); In re Continental Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984) (recognizing public right of access to proceedings on motion to terminate derivative claims in civil suit). While the right of access to judicial proceedings is not absolute, it “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2741 (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824," }, { "docid": "14292152", "title": "", "text": "with the clerk pursuant to 28 U.S.C. § 753(b). Two aspects of the Wilson trial are before us. The first deals with the record of the proceedings: included would be the pleadings, docket entries, orders, affidavits or depositions duly filed, and transcripts or court reporter’s notes of hearings or trial proceedings. The second category of material would include trial exhibits offered by the parties. In weighing the competing interests of preserving the district court’s authority in encouraging settlement agreements and the public’s right to access to public trials, we recognize a difference between these two categories of trial materials. In arguing for reversal, appellant suggests two grounds: a constitutional right of access grounded in the first amendment and a common law right of access to public records. The Supreme Court has not yet held that there is a constitutional right to attend civil trials. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Court held that implicit in the First Amendment is the constitutional right to attend criminal trials. The Third and Sixth Circuits have gone one step further and have held that this constitutional right of access is equally applicable to civil trials. Publicker Industries v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). In Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 428 (5th Cir.1981), which is binding precedent on this court , the court held that “the Constitution grants neither press nor public the right to physical access to courtroom exhibits.” (emphasis added). In Newman v. Graddick, 696 F.2d 796 (11th Cir.1983), our court discussed at some length various aspects of these rights pertaining to the openness of civil trials. While the specific holding of Newman is extremely narrow, this discussion is most helpful. It would appear that the question of whether or not there is a constitutional right of access to civil trials has not been answered by our court. As an alternative ground for" }, { "docid": "11784787", "title": "", "text": "sentencing proceedings, see United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context, the Second Circuit has held that the right applies to civil as well as criminal proceedings, see Westmoreland, 752 F.2d at 23 (finding that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”), and, applying the experience and logic test, has extended this right to encompass docket sheets of civil proceedings, see Hartford Courant, 380 F.3d at 90-96. Other circuits have also concluded that the First Amendment right of access attaches in the civil context. See Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Publisher Indus. Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The Second Circuit has not yet addressed whether the First Amendment right of access applies in the context of an administrative proceeding. Both circuits that have been confronted with the issue have held that the right applies to administrative adjudicatory hearings. See Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir.2002); North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002). b. Analysis Plaintiffs claim for a First Amendment right of access to TAB Hearings presents three discrete questions: first, whether the First Amendment right of access, articulated in the context of criminal proceedings and extended to civil proceedings by the Second Circuit, is properly considered at all in the administrative proceeding at issue in this case; second, if the right does so extend, whether an application of the “experience” and “logic” test results in the attachment of a qualified First Amendment right of access; and third, if so, whether TAB’S current “respondent controls” public access policy passes muster under the First Amendment. The Court will address each of these questions in turn. i. Whether" }, { "docid": "7247588", "title": "", "text": "in that opinion. . Although the Supreme Court has not addressed the right to attend civil trials, each Court of Appeals to examine this question has concluded that Richmond Newspapers applies and that a First Amendment right exists. See, e.g., Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir.1983); In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). . The only constitutionalized access requirement vis-a-vis the Executive is that the President \"from time to time give to the Congress Information of the State of the Union.” (U.S. Const.Art. II, § 3.) The Constitution also requires Congress to publish a \"regular Statement and Account of the Receipts and Expenditures of all public Money,” (U.S. Const, art. I, § 9, cl. 7), and instructs each House of Congress to publish a journal of proceedings from which it may withhold \"such Parts as it may in [its] Judgment require Secrecy.” (U.S. Const, art. I, § 5, cl. 3). . The Government submits that First Amendment Coalition actually stands for the opposite proposition: that we should not apply Richmond Newspapers to any administrative proceeding. It asserts that when we said \"[tjhese administrative proceedings ... do not have a long history of openness,\" our emphasis was on \"proceedings.” Such an emphasis would distinguish administrative proceedings from civil and criminal trials, and would imply that no administrative proceeding could make the historical showing neces- . sary under Richmond Newspapers. But this interpretation is both incorrect and misplaced. It is incorrect because the prior sen-ten.ce referred to the \"fundamentally different procedures of judicial disciplinary boards,” id., so that when we said that \"[fjhese administrative proceedings\" lacked history, we clearly referred only to proceedings before judicial disciplinary boards and not to administrative proceedings generally. It is misplaced because even if the Government were correct that administrative proceedings generally lack history, that argument properly addresses the \"experience” prong of the Richmond Newspapers test itself. Our" }, { "docid": "17575143", "title": "", "text": "F.2d 249, 253 (4th Cir.1988). Ultimately, the decision whether to allow public access to judicial records is a matter of the district court’s “supervisory” and discretionary power. Id. (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). But the right of access may only be abrogated in “unusual circumstances.” Id. (citing Stone v. University of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.1988)). When the First Amendment provides a right of access, the district court may seal documents only “on the basis of a compelling government interest,” a higher standard than described in the preceding paragraph. Id. (internal citations omitted). The First Amendment right of access has been held expressly to apply in criminal cases, and to materials made part of a dispositive motion in civil cases. Id. at 576; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988)(opining that the more rigorous standard applies to documents made part of dispositive civil motions). There is no reason to assume that the First Amendment protection does not apply even more broadly, to non-dispositive motions and materials, such as those at issue here. In fact, existing precedent suggests this broader reach. In Richmond Newspapers, Inc. v. Virginia, the Supreme Court held that the right of the public to attend trials is implicit within certain First Amendment guarantees. 448 U.S. 555, 578-80, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). “[A] presumption of openness inheres in the very nature of a ... trial under our system of justice.” Id. at 573, 100 S.Ct. 2814. Courts have interpreted Richmond Newspapers broadly, and “make little distinction between the right of access to court proceedings and the right of access to court records.” Anne-Therese Beehamps, Sealed OuGof-Court Settlements: When Does the Public Have a Right to Know?, 66 Notre Dame L.Rev. 117, 135 (1990) and cases cited therein. “These courts understand Richmond Newspapers to recognize the public’s general right to receive information within a court’s control.” Id. at 136. Indeed, “in some civil cases the public interest in access, and the salutary" }, { "docid": "20385336", "title": "", "text": "Cir.1983). This recognition of the right to attend civil trials derives from the fact that the First Amendment, unlike the Sixth, does not distinguish between criminal and civil proceedings; nor does it distinguish among branches of government. Rather, it, protects the public against the government’s “arbitrary interference with access to important information.” Richmond Newspapers, 448 U.S. at 583, 100 S.Ct. 2814 (Stevens, J., concurring). As the district court below aptly noted, “[o]nce unmoored from the Sixth Amendment, there is no principle that limits the First Amendment right of access to any one particular type of government process.” NYCLU, 675 F.Supp.2d at 431 (internal quotation marks omitted). However, neither our Court nor the Supreme Court has had occasion to consider under what conditions, if at all, a qualified right of access attaches to non-trial civil proceedings like the administrative adjudication at issue here. It is to that question that we now turn. A. Applicability of the Experience and Logic Test The NYCTA would have us forgo the Richmond Newspapers test: it argues that administrative proceedings are never subject to a presumption of public access and that Richmond Newspapers and its progeny apply only to courts. The NYCTA argues that, since administrative proceedings were rare, if not nonexistent, in the early Republic, they are totally different from either criminal or civil trials, which enjoyed centuries of open access, dating back before the Founding. The First Amendment, the NYCTA claims, could not possibly guarantee a right to access something that barely existed at the time of the Founding. Instead, the NYCTA suggests, the issue of public access to administrative proceedings is one for the legislature or the administrative agency itself to decide, free from judicial supervision. This argument fails for several reasons. The Supreme Court has not specified how courts should determine whether the experience and logic test applies to administrative proceedings. But we have good reason to think that this determination does not involve asking whether the proceedings in question have a history of openness dating back to the Founding. As the Sixth Circuit has stated, the “Supreme Court effectively silenced this" }, { "docid": "6979081", "title": "", "text": "v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980) (Court found it was “reasonably foreseeable that other trials may be closed by other judges without any more showing of need than is presented on this record”). Pulitzer urges us to find a constitutional right of access to civil proceedings and to apply First Amendment standards to this case. The District Court’s order denying Pulitzer’s motions appears to take that approach. Although the Supreme Court has held “that the right to attend criminal trials is implicit in the guarantees of the First Amendment,” Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. at 2829 (footnote omitted), it never has held that there is a constitutional right of access to civil trials. See id. at 580 n. 17, 100 S.Ct. at 2829 n. 17 (“Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.”). Pulitzer nevertheless suggests we join two other circuits that, according to Pulitzer, have so held. See Stone v. University of Md. Medical Sys. Corp., 855 F.2d 178 (4th Cir.1988) (access sought to court file in civil rights suit); Publisher Indus. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984) (finding First Amendment right of access to civil proceedings and granting access to hearing on motion for preliminary injunction against disclosure at stockholders’ meeting). The Eighth Circuit has yet to address the issue, although we did find a First Amendment right of access to contempt proceedings, a “hybrid” of criminal and civil proceedings. In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir.1983) (“Arguably, the public interest in securing the integrity of the fact-finding process is greater in the criminal context than the civil context, since the condemnation of the state is involved in the former but not the latter, but it is nonetheless true that the public has a great interest in the fairness of civil proceedings.”). We find it unnecessary to our decision in this case to" }, { "docid": "20385335", "title": "", "text": "sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). We have also held that the public’s right implies that particular indi viduals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir.2005). Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983). This recognition of the right to attend civil trials derives from the fact that the First Amendment, unlike the Sixth, does not distinguish between criminal and civil proceedings; nor does it distinguish among branches of government. Rather, it, protects the public against the government’s “arbitrary interference with access to important information.” Richmond Newspapers, 448 U.S. at 583, 100 S.Ct. 2814 (Stevens, J., concurring). As the district court below aptly noted, “[o]nce unmoored from the Sixth Amendment, there is no principle that limits the First Amendment right of access to any one particular type of government process.” NYCLU, 675 F.Supp.2d at 431 (internal quotation marks omitted). However, neither our Court nor the Supreme Court has had occasion to consider under what conditions, if at all, a qualified right of access attaches to non-trial civil proceedings like the administrative adjudication at issue here. It is to that question that we now turn. A. Applicability of the Experience and Logic Test The NYCTA would have us forgo the Richmond Newspapers test: it argues that administrative proceedings are" }, { "docid": "22570017", "title": "", "text": "and the press a qualified right of access to criminal trials, see id. at 580, 100 S.Ct. 2814, to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The circuits, including ours, have concurred in holding that this right applies to civil as well as criminal proceedings. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”); see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the “rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (determining that “the First Amendment embraces a right of access to [civil] trials”) (citation and internal quotation marks omitted). Numerous federal and state courts have also extended the First Amendment protection provided by Richmond Newspapers to particular types of judicial documents, determining that the First Amendment itself, as well as the common law, secures the public’s capacity to inspect such records. See, e.g., In re Providence Journal Co., 293 F.3d 1, 10-13 (1st Cir.2002) (holding that the District of Rhode Island’s blanket policy of refusing to file memoranda of law that counsel were required to submit in connection with motions violated the First Amendment); Phoenix Newspapers, Inc. v. United States Dist. Court, 156 F.3d 940, 948 (9th Cir.1998) (determining that the First Amendment requires “release of transcripts [of closed criminal proceedings] when the competing interests precipitating hearing closure are no longer viable”); United States v. Antar, 38 F.3d 1348, 1359-60 (3d Cir.1994) (stating that “the right of access to voir dire examinations encompasses equally the live proceedings and the transcripts which document those proceedings” and observing that “[i]t is access to the" }, { "docid": "15736674", "title": "", "text": "voted 4-3, with Justice Stewart concurring only in the judgment. Houchins, 438 U.S. at 16-19, 98 S.Ct. 2588. . The Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown and Williamson, have addressed the issue. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test. See, e.g., Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308; Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983); see also In re Iowa Freedom of Info. Council, 724 F.2d 658, 661-63 (8th Cir.1983). . The lack of alternative means for the public to access the hearings also informs our conclusion. The Court in Houchins noted at some length that alternative means existed for gathering information about prison conditions. Houchins, 438 U.S. at 12-16, 98 S.Ct. 2588. Here, there exist no alternative means for the media to learn about deportation proceedings in special interest cases. . Available discretionary relief include the following: (i) adjustment of status, see 8 U.S.C. § 1255; (ii) cancellation of removal (pursuant to IIRIRA of 1996, this procedure replaces and substantially alters two previous provisions— § 212(c) waiver and suspension of deportation), see 8 U.S.C. § 1229b; (iii) asylum, see 8 U.S.C. § 1158; voluntary departure, see 8 U.S.C. § 1229c; and (iv) registry, see 8 U.S.C. § 1259. . At best, the Government's claimed \"historical proof” shows only that in some cases, there may not be much historical record. This does not mean, however, that there was not a historical practice of one kind or the other. In such cases, it makes more sense to look to more recent practice, similar proceedings, and concentrate on the \"logic” portion of the test. . \"Without publicity," }, { "docid": "22208543", "title": "", "text": "criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of. speech and of the press could be eviscerated.” Id. at 580, 100 S.Ct. 2814 (citation and internal quotation marks omitted). We too have held that “the First Amendment ... secure[s] to the public and to the press a right of access to civil proceedings.” Westmoreland, 752 F.2d at 22 (reviewing the case-law with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”); accord Hartford Courant Co. v. Pellegrino, 371 F.3d 49, 57 (2d Cir.2004) (applying principles of First Amend ment rights of access to courts to conclude that there is a “qualified First Amendment right to inspect [civil] docket sheets, which provide an index to the records of judicial proceedings”); Publicker Indus., Inc., 733 F.2d at 1061 (“We hold that the First Amendment does secure a right of access to civil proceedings.”). 2. The Individual’s Right of Access to the Courts. Both the Supreme Court and this Court have with some frequency articulated principles regarding the First Amendment right of access to court proceedings and papers. But, remarkably, the parties do not point us to, nor have we ourselves found, a Supreme Court or Second Circuit opinion that has discussed this right in the context of the exclusion of an identified individual member of the public or press, rather than the barring of the public or the press at large, from court proceedings to which that individual is not a party. Cf. Beerman, 18 F.3d at 152 (concluding, in the context of a suit claiming that a single individual was denied access to criminal proceedings in violation of the First Amendment, that the individual was not denied access, and therefore having no need to determine whether the right of access covered the exclusion of an individual). We have no doubt, nonetheless, that an identified non-party such as Huminski who is denied access to court" }, { "docid": "11784786", "title": "", "text": "at 92, 94-96 (referring to and applying the “experience” and “logic” test). Specifically, the Supreme Court found that its previous “decisions have emphasized two complementary considerations”: first, whether there exists a “tradition” of public access to a type of proceeding that carries “the favorable judgment of experience[ ]” (the experience prong); second, “whether pub- lie access plays a significant positive role in the functioning of the particular process in question” (the logic prong). Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735 (citations and internal quotation marks omitted). The Supreme Court recognized that “[tjhese considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes.” Id. at 9, 106 S.Ct. 2735. In the criminal context, the Second Circuit has found that the First Amendment right of access extends to pre-trial suppression hearings, see Application of The Herald Co., 734 F.2d 93, 99 (2d Cir.1984), plea hearings and plea agreements filed in connection with those hearings, see United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988), and sentencing proceedings, see United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context, the Second Circuit has held that the right applies to civil as well as criminal proceedings, see Westmoreland, 752 F.2d at 23 (finding that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”), and, applying the experience and logic test, has extended this right to encompass docket sheets of civil proceedings, see Hartford Courant, 380 F.3d at 90-96. Other circuits have also concluded that the First Amendment right of access attaches in the civil context. See Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Publisher Indus. Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The Second Circuit has" }, { "docid": "22208542", "title": "", "text": "achieved.”). A result considered untoward may undermine public ‘confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society’s [judicial] process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it. Richmond Newspapers, Inc., 448 U.S. at 571-72, 100 S.Ct. 2814 (citation and internal quotation marks omitted). And when the “theatre of justice,” Trial Secrecy, supra, at 1923 (internal quotation marks and footnote omitted), does not progress or end consistently with what a member of the public, or public opinion at large, deems proper, citizens can attempt to initiate reform. Id. Based on the history and purposes of maintaining public access to court proceedings, “a presumption of openness inheres in the very nature of a ... trial under our system of justice.” Richmond Newspapers, Inc., 448 U.S. at 573, 100 S.Ct. 2814. Therefore, “the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of. speech and of the press could be eviscerated.” Id. at 580, 100 S.Ct. 2814 (citation and internal quotation marks omitted). We too have held that “the First Amendment ... secure[s] to the public and to the press a right of access to civil proceedings.” Westmoreland, 752 F.2d at 22 (reviewing the case-law with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”); accord Hartford Courant Co. v. Pellegrino, 371 F.3d 49, 57 (2d Cir.2004) (applying principles of First Amend ment rights of access to courts to conclude that there is a “qualified First Amendment right to inspect [civil] docket sheets, which provide an index to the records of judicial proceedings”); Publicker Indus., Inc., 733 F.2d at 1061 (“We hold that the First Amendment does secure a right of access" }, { "docid": "8166289", "title": "", "text": "Superior Court (Press-Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). It is highly doubtful that “California could decide not to give out [the complaints] at all without violating the First Amendment.” Id. (emphasis added); cf. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the First Amendment right of access applies to a summary judgment motion in a civil case). Though the government may sometimes withhold information without violating the expressive rights protected by the First Amendment, the First Amendment right of access to public proceedings — where it applies — is inextricably intertwined with the First Amendment right of free speech. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). This difference in the precise First Amendment right asserted by CNS does not in any way diminish the principles underlying our rule that federal courts should not invoke Pullman abstention in cases impheating First Amendment rights. CNS’s claims, like other First Amendment claims, raise issues of particular federal concern. B. The Supreme Court has repeatedly held that access to public proceedings and records is an indispensable predicate to free expression about the workings of government. In the foundational case, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Court reasoned that “[f]ree speech carries with it some freedom to listen.” Id. at 576, 100 S.Ct. 2814 (plurality opinion). It held that the First Amendment guarantees of freedom of speech and freedom of the press, “standing alone,” enabled access to criminal trials. Id. Otherwise, those rights “would lose much meaning if access to ... the trial could ... be foreclosed arbitrarily.” Id. at 577, 100 S.Ct. 2814. The Court later clarified that the First Amendment protects the right of public access, even though it is not explicitly enumerated therein, because “a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613 (internal quotation marks omitted). The right of access is thus" }, { "docid": "22570016", "title": "", "text": "on procedural or jurisdictional grounds. See Flynt v. Rumsfeld, 355 F.3d 697 (D.C.Cir.2004) (addressing and denying the asserted First Amendment right for press representatives to travel with the military on appeal from the district court’s dismissal of the complaint for lack of subject matter jurisdiction). Finally, in its brief to this Court, the State recognized the public’s qualified right of access to court documents. We write only to clarify the narrow issue of whether docket sheets fall within the scope of this qualified right. The right that the plaintiffs assert emanates from our precedents establishing the public’s and the press’s qualified First Amendment right to attend judicial proceedings and to access certain judicial documents. Taken together, these suggest that the media and the public possess a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and its progeny, the Supreme Court recognized that the First Amendment grants both the public and the press a qualified right of access to criminal trials, see id. at 580, 100 S.Ct. 2814, to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The circuits, including ours, have concurred in holding that this right applies to civil as well as criminal proceedings. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”); see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the “rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (determining that “the First Amendment embraces a" }, { "docid": "7247587", "title": "", "text": "out his authority,” id. at § 1103(a)(3), and provides for removal proceedings to be conducted by immigration judges within the Executive Branch \"under regulations prescribed by the Attorney General.” Id. Pursuant to this authority, the Attorney General in 1964 promulgated a regulation governing public access to removal and other administrative hearings that has remained substantially unchanged. It mandates the closure of certain hearings, such as those involving abused alien children, and permits the closure of all other hearings to protect \"witnesses, parties, or the public interest.\" 8 C.F.R. § 3.27 (2002) (modern codification). The Creppy Directive was issued pursuant to this regulation. . Although the Creppy Directive did not itself prohibit aliens and their counsel from themselves disclosing information about special interest hearings, a recently promulgated regulation authorizes immigration judges to issue protective orders and seal records as neces-saiy to protect sensitive \"law enforcement or national security information.\" See 67 Fed. Reg. 36799, 36799 (May 28, 2002). As this regulation took effect on the day the District Court rendered its decision, it played no role in that opinion. . Although the Supreme Court has not addressed the right to attend civil trials, each Court of Appeals to examine this question has concluded that Richmond Newspapers applies and that a First Amendment right exists. See, e.g., Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir.1983); In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). . The only constitutionalized access requirement vis-a-vis the Executive is that the President \"from time to time give to the Congress Information of the State of the Union.” (U.S. Const.Art. II, § 3.) The Constitution also requires Congress to publish a \"regular Statement and Account of the Receipts and Expenditures of all public Money,” (U.S. Const, art. I, § 9, cl. 7), and instructs each House of Congress to publish a journal of proceedings from which it may withhold \"such Parts as it" }, { "docid": "23686079", "title": "", "text": "tradition for open court proceedings, a value incorporated into modern First and Sixth Amendment law. See U.S. Const. amend. VI (guaranteeing the right to a “public trial” (emphasis added)); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (noting that the First Amendment secures “a right of access to civil proceedings”). The risk of limiting access, of course, is that where a proceeding “has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). “[T]he appearance of justice can best be provided by allowing people to observe” proceedings. Id. at 572, 100 S.Ct. 2814. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Id. This is especially true in the courts, where the guarantee of a public trial “has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Granted, there are circumstances in which a court may close proceedings to which a public right of access presumptively attaches. See Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); United States v. Alcantara, 396 F.3d 189, 199-200 (2d Cir.2005); United States v. Doe, 63 F.3d 121, 127-28 (2d Cir.1995). And the problems posed by the need to consider classified material are unavoidable in some criminal prosecutions and in other cases where we have a duty, imposed by Congress, to exercise jurisdiction. But this is not such a circumstance or such a case. The preference for open rather than clandestine court proceedings is a special factor that counsels hesitation in extending Bivens to the extraordinary rendition context." }, { "docid": "15736673", "title": "", "text": "bona fide.” . Given the political climate of the time and its positions in other cases involving Chinese immigrants, it is probable that the Court would have found the reasons for the law “facially legitimate and bona fide.” In The Chinese Exclusion Case, a similar law, although substantive, was upheld. See The Chinese Exclusion Case, 130 U.S. at 589, 9 S.Ct. 623 (finding a law preventing Chinese laborers from entering the United States, even if they had previously lived there and had certificates authorizing their return, constitutional). In The Chinese Exclusion Case, a procedural law was struck down. Accordingly, a higher standard of review must have been used. . It should also be noted that this language concerning terrorism was strictly dicta. In New York Times v. United States, the Court applied no deferential review to the Government’s actions when faced with a national security threat. See New York Times, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822. . In Houchins, Justices Marshall and Black-mun were unable to participate in the case. The Court voted 4-3, with Justice Stewart concurring only in the judgment. Houchins, 438 U.S. at 16-19, 98 S.Ct. 2588. . The Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown and Williamson, have addressed the issue. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test. See, e.g., Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308; Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983); see also In re Iowa Freedom of Info. Council, 724 F.2d 658, 661-63 (8th Cir.1983). . The lack of alternative means for the public to access the hearings also informs our conclusion. The Court in" }, { "docid": "20385334", "title": "", "text": "but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10, 102 S.Ct. 2613; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”); and preliminary hearings, Press-Enterprise II, 478 U.S. at 13-15, 106 S.Ct. 2735. Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat’l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir.1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); information on the payment of court-appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir.1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir.2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004); and sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). We have also held that the public’s right implies that particular indi viduals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir.2005). Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th" } ]

[ { "docid": "4612969", "title": "", "text": "would not consider the Robin Blumer deposition and that it would sign the proposed findings and order submitted by Idaho Asphalt. The court entered the order on September 29, 1987. Credit Alliance moved for reconsideration and for judicial notice of the deposition of Robin Blumer. By an order entered October 15, 1987, the bankruptcy court denied the motions for reconsideration and for judicial notice of the Robin Blumer deposition. On October 19, 1987, Credit Alliance filed a timely notice of appeal from the September 29 and October 15 orders. II. ISSUES. 1. Whether the bankruptcy court erred in refusing to consider the Robin Blumer deposition. 2. Whether the bankruptcy court erred in determining that Idaho Asphalt extended credit to debtor Eldon Blumer in the ordinary course of business and was entitled to administrative expense priority under section 364(a) and section 503(b)(1). 3. Whether Credit Alliance is entitled to an award of attorney fees on appeal. III. STANDARD OF REVIEW. A bankruptcy court’s findings of fact will not be reversed unless clearly erroneous. Bankruptcy Rule 8013; In re Lewis, 79 B.R. 893, 895 (9th Cir. BAP 1987). Conclusions of law are subject to de novo review. Lewis, 79 B.R. at 895. IV. DISCUSSION. A. The bankruptcy court’s refusal to consider the Robin Blumer deposition. 1. The Robin Blumer deposition as part of the record. Credit Alliance contends that the bankruptcy court erred in refusing to consider the Robin Blumer deposition because, as a previously admitted deposition, it was part of the record in the bankruptcy case. The Ninth Circuit Court of Appeals addressed the question of what evidence a bankruptcy judge can consider from prior hearings in In re Acequia, Inc., 787 F.2d 1352 (9th Cir.1986) when it affirmed the bankruptcy judge’s consideration of evidence presented at a prior hearing in ruling on confirmation of a Chapter 11 plan of reorganization. Acequia recognizes that a bankruptcy judge may, but need not, consider evidence from a prior hearing in the same case if the notice of what will be considered is sufficient to permit the parties to challenge the prior evidence. Based" } ]

[ { "docid": "4779428", "title": "", "text": "a hearsay exception. Fed.R.Evid. 805. In addition to affidavits, this court often takes judicial notice of the schedules filed in the case when the value of property is in issue. The debtors’ schedules are a key document in a bankruptcy case and are executed by debtors under penalty of perjury. Representations by a debtor in the schedules as to such matters as the value of property, when offered against a debtor, are eligible for treatment as admissions by a party-opponent. Fed.R.Evid. 801(d)(2). Judicial notice of basic filings in the bankruptcy case is permissible to fill in gaps in the evidentiary record of a specific adversary proceeding or contested matter. In re E.R. Fegert, Inc., 887 F.2d 955 (9th Cir.1989). In this instance, San Francisco Federal made a motion for relief from stay predicated upon lack of equity in the property and provided evidence of the amount of its claim. No evidence, however, was provided that was probative of the value of the property. Thus, evidence was missing as to the essential element of value. There was, however, relevant evidence located in the schedules filed in the bankruptcy case. Specifically, the debtors swore under penalty of perjury in their schedules that the property in question was worth $50,950.00. This statement qualified for use as an admission by a party-opponent under Federal Rule of Evidence 801(d)(2) as it was (a) intended by the debt- or declarant as an assertion, (b) relevant to the question of value, and (c) being used against the party declarant. This statement was evidence on the face of the record that was available to fill in the evi-dentiary gap. The court was faced with a choice. It could deny the motion for relief from the stay based upon failure of proof, or it could, as a matter of discretion, fill in the evidentiary gap by taking judicial notice of the evidence of the schedules in which the debtors agreed under oath that they lacked equity in the property. It did the latter. In this motion for reconsideration, San Francisco Federal says that the court should have put a" }, { "docid": "12431105", "title": "", "text": "case is further evidence of a scheme intended to delay or- defraud Liberty Bank. See Henderson, 395 B.R. at 904 (holding that the “objective futility” of a reorganization is grounds for a finding of bad faith and for in rem relief). The Court also gave great weight to the fact that the Danleys have not carried insurance or paid taxes on the properties for five years, preferring instead to freeload at Liberty Bank’s expense. It appears that the Danleys are attempting to see how long they can hold their property without paying anything to Liberty Bank, the tax collector, or the insurance man. This is very strong, if not conclusive, evidence of a scheme to hinder or delay Liberty Bank in and of itself. Liberty Bank offered a massive amount of evidence of bad faith, none of which was successfully rebutted by the Danleys. The Court carefully considered the circumstances of the Danleys in this case as well as in their three previous bankruptcy filings, concluding' that they are part of a scheme to delay and hinder Liberty Bank in its efforts to realize on its collateral. Given the Danleys’ conduct in this case, and in their other cases, in rem relief is justified under 11 U.S.C. § 362(d)(4)(B). E. Stay of In Bern Relief The Danleys moved to extend the automatic stay beyond the 14-day period provided by Bankruptcy -Rule 4001(a)(3), pending a ruling on their motion to alter, amend, or vacate. (Doc. 74). In light of this ruling, that motion is now denied as moot. F. Order to Show Cause On September ■ 22, 2015, the Court entered an order to the Danleys to show cause why their case should not be dismissed for their failure to timely file schedules. (Doc. 60); see Tennant v. Rojas (In re Tennant), 318 B.R. 860, 869 (9th Cir. BAP 2004); In re Wishon, 410 B.R. 295, 305 (Bankr.D.Ore.2009) (dismissing case notwithstanding the fact that amended schedules were filed prior to dismissal); LBR 1017-1. A debtor’s schedules and statement of financial affairs shall be filed within 14 days of the date of" }, { "docid": "20175518", "title": "", "text": "the automatic stay never terminated under § 362(h) on all of the Collateral, but only terminated on personal property identified on the Debtor’s Schedules. The Trustee interpreted the Schedules as hmiting the Collateral to the Debtor’s personal property located at the “Family Compound [at] Yellowstone Mountain Club.” Because the contract rights referenced in the May Sale notice were not located at the Yellowstone Mountain Club, the Trustee argued they remained under the protection of the automatic stay. Western Capital filed an objection to the Motion to Enforce, contending that § 362(h) applied to all the Collateral securing the Loan. On August 10, 2010, the bankruptcy court held a hearing on the Motion to Enforce. It issued a Memorandum of Decision on August 16, 2010, holding that § 362(h) terminated the automatic stay on the Collateral regardless of whether it was listed on the Schedules. An order denying the Motion to Enforce was entered the same day (the Order Denying Enforcement). On August 30, 2010, the Trustee filed a notice of appeal. II.JURISDICTION The bankruptcy court had jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A). We address our jurisdiction under 28 U.S.C. § 158 below. III.ISSUE Whether § 362(h) terminates the automatic stay on all personal property of the estate pledged to secure a scheduled debt or only terminates the stay on personal property specifically identified in a debt- or’s schedules as securing the debt. IV.STANDARDS OF REVIEW We review issues of statutory construction and conclusions of law, including the bankruptcy court’s interpretation of the Bankruptcy Code, de novo. Am. Express Bank, FSB v. Smith (In re Smith), 418 B.R. 359, 364 (9th Cir. BAP 2009); Dumont v. Ford Motor Credit Co. (In re Dumont), 383 B.R. 481, 484 (9th Cir. BAP 2008), aff'd, 581 F.3d 1104 (9th Cir.2009). V.DISCUSSION A. Jurisdiction We lack jurisdiction over an appeal that is not timely filed. Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767 (9th Cir.1994) (requirement of timely notice of appeal is mandatory and jurisdictional). Western Capital contends that this appeal is untimely. See Rule 8002 (a notice of appeal" }, { "docid": "6678108", "title": "", "text": "the March 25, 2002 order, absent entry of a separate order denying such motion? Typically, as was done in this case, a court will consider a premature motion for reconsideration. See Constellation Dev. Corp. v. Dowden (In re B.J. McAdams, Inc.), 999 F.2d 1221, 1223-24 (8th Cir.1993) (court had jurisdiction to consider premature motion for rehearing, which tolled appeal time); Contempo Metal Furniture Co. of Cal. v. E. Tex. Motor Freight Lines, Inc., 661 F.2d 761, 764 n. 1 (9th Cir.1981) (allowing motion for new trial after court orally entered its opinion, but before entry of judgment); McCulloch Motors Corp. v. Or. Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding premature motion timely but precluding another motion for new trial following judgment). See also Fed. R. Bankr.P. 8002(a) (notice of appeal filed after the announcement of a decision or order but before entry of judgment, order, or decree is treated as filed after such entry). Here, the parties were cognizant of the court’s ruling on the stay relief motion following the evidentiary hearing and oral findings. However, the court asked for further briefing on the amount of compensation due Lien for his loss of use of the property. The court also gave the opposing party an opportunity to respond to the motion for reconsideration. A further hearing was then held on all of these matters on March 25, 2002, where the court orally denied the reconsideration motion. On the same day, the court entered its formal judgment for stay relief. Such order implicitly denied the motion for reconsideration, which was subsumed within the order annulling the stay. Since that judgment was timely appealed, we therefore have jurisdiction to hear this appeal. B. Lien Was a Bona Fide Purchaser California law determines whether Lien was a bona fide purchaser. See Siegel v. Boston (In re Sale Guar. Corp.), 220 B.R. 660, 665 (9th Cir. BAP 1998), aff'd, 199 F.3d 1375 (9th Cir.2000). A bona fide purchaser purchases (1) for value, (2) in good faith, and (3) without actual or constructive notice of another’s rights. See Oakdale Village Group v. Fong," }, { "docid": "17377592", "title": "", "text": "resolution of that appeal does not affect the appeal before us. . After filing her notice of appeal, Edwards filed a motion for rehearing under Rule 9023. Pursuant to Rule 8002(b), Edwards' appeal of the Relief from Stay Order became effective when the bankruptcy court entered its order denying Edwards’ motion for rehearing, on October 22, 2010. We will not review as part of this\" appeal the order denying the motion for rehearing because Edwards did not, as required by Rule 8002(b), amend her notice of appeal to include this order. We also will not review the order denying rehearing because Edwards' brief on appeal did not raise any issues specifically relating to the motion for rehearing, and thus she has waived them. See Golden v. Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002). . \"Constitutional standing requires an injury in fact, which is caused by or fairly traceable to some conduct or some statutory prohibition, and which the requested relief will likely redress.” In re Veal, 450 B.R. at 906. Constitutional standing is rarely lacking when a creditor seeks relief from the automatic stay, as the stay directly affects a creditor's ability to exercise or vindicate its nonbankruptcy rights. . Rule 7017 makes Civil Rule 17 applicable to adversary proceedings, and Rule 9014(c) makes Rule 7017 applicable to contested matters such as motions under § 362. . Although Wells Fargo has a sufficient color-able claim to give it standing under Veal, that standing only allows it to proceed with its request for stay relief. If allowed under applicable nonbankruptcy law, the debtor may still challenge the foreclosure in state court, or if there is jurisdiction, by initiating an adversary proceeding in bankruptcy court. . This case is distinguishable from cases such as In re Salazar. In Salazar, the bank moving for relief from stay had obtained title to the subject property prior to the debtor's bankruptcy filing through a non-judicial foreclosure sale. 448 B.R. at 818. The relief sought, however, was to continue the unlawful detainer action it commenced in state court" }, { "docid": "4551433", "title": "", "text": "AMENDED MEMORANDUM OPINION RE: Debtors’ (1) Motion to Convert, (2) Motion to Alter or Amend Judgment Granting Motion for Relief from Automatic Stay, and (3) Motion to Stay Execution of Judgment Pending Disposition of Motion to Alter or Amend Judgment and (4) Wells Fargo’s objections thereto G. HARVEY BOSWELL, Bankruptcy Judge. The Court conducted a hearing on the (1) debtors’ motion to convert (docket entry 72), (2) debtors’ motion to alter or amend judgment granting motion for relief from automatic stay (docket entry 73), (3) debtor’s motion to stay execution of judgment pending disposition of motion to alter or amend judgment (docket entry 74) and (4) Wells Fargo’s objections thereto (docket entries 85, 86 and 87) on August 13, 2009. Fed. R. BankrP. 9014. Resolution of these matter is a core proceeding. 28 U.S.C. § 157(b)(2). The Court has reviewed the testimony from the hearing and the record as a whole. This Memorandum Opinion shall serve as the Court’s findings of facts and conclusions of law. Fed. R. BankR.P. 7052. I. Findings of Fact The debtors in this case, Malcolm and Betty Henning, (“debtors”) filed a chapter 13 petition for bankruptcy relief on February 2, 2009. On schedule D of their petition, the debtors listed Wells Fargo Bank, N.A. (“Wells Fargo”) with a claim of $476,500.00 secured by the debtors’ real property at 236 Neely Station Road, in Denmark, Tennessee, (“Denmark property”). The Denmark property is the debtors’ residence. In the chapter 13 plan filed contemporaneously with their petition, the debtors proposed a monthly payment of $1,600.00 to Wells Fargo. Neither the petition nor the chapter 13 plan indicated that there was an arrearage on the Wells Fargo debt. The plan listed the Wells Fargo debt as a “home mortgage claim.” The proposed plan term was 60 months. Wells Fargo filed an objection to the debtors’ plan on March 11, 2009. Wells Fargo alleged that the debtor was attempting to modify the terms of its note which matured on March 10, 2007, and was entirely due and payable. On March 25, 2009, the debtors filed an amended chapter 13 plan." }, { "docid": "8207681", "title": "", "text": "file a complaint objecting to discharge were filed. No motions for extension of time to file a motion to dismiss the case under Rule 1017(e) were filed. The filing fee was paid in full with the petition. On November 20, 2006, the Clerk entered the Debtors’ discharge (doc 34). On August 22, 2006 creditor Bank One, National Association obtained an Order Granting its Motion for Relief from Stay (doc 23) concerning the Debtors’ home. Following some further skirmishing in the bankruptcy case, the Bank scheduled a foreclosure sale of the home for November 1, 2006. On October 25, 2006 Debtors filed this current Chapter 13 proceeding in the District of New Mexico as case 13-06-11966-SL. The only debts listed on the schedules are the secured debts that would remain after the Chapter 7. On November 7, 2006, the Court sua sponte set a status conference for November 20, 2006 on the issue of the propriety of having two bankruptcy cases pending at the same time, and at that hearing ordered the parties to brief the issue. CONCLUSIONS OF LAW In Davis v. Mather (In re Davis), 239 B.R. 573, 575 n. 2 (10th Cir. BAP 1999) the Tenth Circuit Bankruptcy Appellate Panel stated: We note that the Debtor filed his Chapter 13 petition after he received his Chapter 7 discharge but before the Chapter 7 proceedings were closed. A debtor who has been granted a discharge under one chapter under Title 11 may file a subsequent petition under another chapter even though the first case remains open, as long as the debtor meets the requirements for filing the second petition. Grimes v. United States (In re Grimes), 117 B.R. 531, 536 (9th Cir. BAP 1990). In this case the issue is whether debtors, who are entitled to entry of their discharge under chapter 7 may file a subsequent chapter 13 case even through the first case remains open and the debts not formally discharged. Bankruptcy Code Section 727(a) provides that the Court shall grant the Debtor a discharge unless certain conditions are met. This statute is implemented by Bankruptcy Rule" }, { "docid": "6678107", "title": "", "text": "Deville), 280 B.R. 483, 492 (9th Cir. BAP 2002). Whether the sanction comported with due process is a question of law, which we review de novo. Id. DISCUSSION A. Jurisdiction As a threshold issue, we must determine our jurisdiction to hear this appeal. Travers v. Dragul (In re Travers), 202 B.R. 624, 625 (9th Cir. BAP 1996). Debtor filed her motion for reconsideration following the court’s oral announcement of its ruling; therefore the motion was premature. Rule 9023, incorporating Fed.R.Civ.P. 59, provides that a motion for new trial/reconsideration must be filed no later than 10 days after entry of the judgment. A timely motion thus tolls the start of the appeal period until entry of the order denying such motion. See Fed. R. Bankr.P. 8002(b). Here, only one judgment was entered, on March 25, 2002, which granted stay relief but did not expressly deny the motion for reconsideration. Thus, our jurisdiction is at issue in this way: if the premature motion for reconsideration was actionable, did it toll the appeal period indefinitely, after entry of the March 25, 2002 order, absent entry of a separate order denying such motion? Typically, as was done in this case, a court will consider a premature motion for reconsideration. See Constellation Dev. Corp. v. Dowden (In re B.J. McAdams, Inc.), 999 F.2d 1221, 1223-24 (8th Cir.1993) (court had jurisdiction to consider premature motion for rehearing, which tolled appeal time); Contempo Metal Furniture Co. of Cal. v. E. Tex. Motor Freight Lines, Inc., 661 F.2d 761, 764 n. 1 (9th Cir.1981) (allowing motion for new trial after court orally entered its opinion, but before entry of judgment); McCulloch Motors Corp. v. Or. Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding premature motion timely but precluding another motion for new trial following judgment). See also Fed. R. Bankr.P. 8002(a) (notice of appeal filed after the announcement of a decision or order but before entry of judgment, order, or decree is treated as filed after such entry). Here, the parties were cognizant of the court’s ruling on the stay relief motion following the evidentiary hearing and" }, { "docid": "9889726", "title": "", "text": ". Unless stated otherwise, citations to the record in this and the Gibases' prior cases are as follows: (1) docket entries in this ease, 15-31102, are cited as \"Chapter 11 Case Doc. No.-(2) docket entries in Northern District of Illinois (N.D.Ill.) bankruptcy case 11-37187 are cited as \"2011 Casé Doc. No. -(3) docket entries in N.D. Ill. bánkruptcy case 12-43517 arecited as- “2012 Case Doc. No. —(4) docket entries in N.D. Ill. bankruptcy case 13-11394.are cited as \"First 2013 Case Doc. No.-(5) docket entries in N.D. Ill. bankruptcy case 13-29032 are cited as \"Second 2013 Casé Dóc. No.-(6) docket entries in N.D. Ill. bankruptcy case 14-18049 are cited as \"First 2014 Case Doc. No. -(7) docket entries in N.D. Ill. bankruptcy case 14-30601 are cited as \"Second 2014 Case Doc. No.-and (8) dock: et entries in Eastern District of Wisconsin bankruptcy’case 15-24522 are cited as “2015 Chapter 13 Case Doc. No:-” . Several hours before that hearing, the petitioners filed a one-page “Monthly Financial Report,\" which did not account separately for each of their businesses, and lacked any detail. (Chapter 11 Case Doc. No. 41.) . On Schedule I Kimberly states that she has been employed at New Beginnings Chiropractic for five years, but the schedules she filed in prior cases listed her employment duration as three years in 2011, and seven years in 2014. (Chapter 11 Case Doc. No. 20 at 19; 2011 Case Doc. No. 20 at 14; Second 2014 Case Doc. No. 10 at 12.) . In this case, it was creditor CIT’s supplemental objection to the motion to continue stay (Chapter 11 Case Doc. No. 21) which alerted the court, and the U.S. Trustee, to the petitioners' prior Illinois cases. Moreover, the court may properly take judicial notice of the filings in the Gibases' prior bankruptcy cases. See Fed. R. Evid, 201; Fed. R. Bankr. P. 9017;, Ennenga v. Sterns, 677 F.3d 766, 773-74 (7th Cir.2012)). \"Verified schedules and státements filed by Debtors are not just pleadings, motions or exhibits, they contain evidentiary admissions.” In re Standfield, 152 B.R. 528, 531 (Bankr.N.D.Ill.1993). .These acronyms stand for" }, { "docid": "15676702", "title": "", "text": "case. We further note that Chizzali has made no showing that if the state court of appeals reversed the trial court and reinstated the clerk’s entry of default, he would then be likely to obtain an actual judgment against the bank. Accordingly, the bank ruptcy court did not abuse its discretion in denying Chizzali’s motion to lift the automatic stay under § 362(d)(1). 2. Section 362(d)(2) Chizzali also argues that the bankruptcy court should have lifted the automatic stay under § 362(d)(2), because he proved that Gindi has no equity in the Bank of the West account and no one has shown that the account is “necessary to an effective reorganization” under Chapter 11. 11 U.S.C. § 362(d)(2)(B); see id. § 362(g) (party moving to lift stay has burden of proving that debtor has no equity in the property, while opposing party has burden on all other issues). A debtor “has no equity in property ... when the debts secured by liens on the property exceed the value of the property.” 3 Collier on Bankruptcy, supra ¶ 362.07[4][a]; Stewart v. Gurley, 745 F.2d 1194, 1195-96 (9th Cir.1984); Jordan v. Kroneberger (In re Jordan), 392 B.R. 428, 447 (Bankr.D.Idaho 2008) (“In the context of stay relief, ‘equity’ exists if the value of the property exceeds all claims secured by such property, whether those claims belong to the moving creditor or others.”); In re Roxrun Estates, Inc., 74 B.R. 997, 1002 (Bankr.S.D.N.Y.1987). Chizzali has satisfied his burden of showing that Gindi has no equity in the funds at Bank of the West. As noted above, the writ of garnishment sought to collect upon a judgment for $328,070.30. Chizzali correctly points out that under Colorado law the service of the writ created a lien in that amount on the funds. See Moreland v. Alpert, 124 P.3d 896, 902 (Colo.App.2005); Ryan v. Duffield, 899 P.2d 378, 380 (Colo. App.1995) (“As a judgment creditor, a garnishor becomes a lien creditor upon service of the writ of garnishment on the garnishee.”). This lien alone exceeded the value of the account. And Bank of the West had" }, { "docid": "12813986", "title": "", "text": "applicable to the proper filing of a claim based on a writing. The amendments, which take effect December 1 of this year, add additional requirements in an individual debtor case and specify the sanctions that may ensue for failure to comply. See Fed. R. Bankr.P. 3001(c)(2) (effective December 1, 2011); see also In re Andrews, 394 B.R. 384, 389 (Bankr.E.D.N.C.2008) (discussing the need for revisions to the rule in the context of claims filed by bulk claim buyers and referring the issue to the Advisory Committee on Bankruptcy Rules); see also In re S & A Dennis Enters., Inc., 2011 WL 1457204 at *8-9 (Bankr.W.D.N.C.2011) (discussing the many divergent views of precisely what documentation must accompany a claim for a credit card debt and declining to establish precedent as to what is required, in part because of pending amendments to Rule 3001). . The court notes as an aside that there is strong and ample authority for the proposition that a creditor's filing of a claim in a bankruptcy proceeding, even if the claim is prescribed by applicable state law, is not an unlawful debt collection practice actionable under the FDCPA. See, e.g., Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95-96 (2nd Cir.2010); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 227 (9th Cir. BAP 2008) (construing Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002)), B-Real, LLC v. Rogers, 405 B.R. 428 (M.D.La.2009); see also, e.g., In re Varona, 388 B.R. 705, 719 (Bankr.E.D.Va.2008) (not addressing the issue directly but citing numerous cases that do). This court, like the Chaussee court, is \"convinced that the Code and Rules are up to the task of compensating a debtor for any damages or costs occasioned by, and to punish and deter, those who would abuse the bankruptcy claims process,” such that an objection to claim and motion for sanctions, if warranted, will typically be the appropriate measures to take in cases involving stale claims filed by debt buyers. B-Real, LLC v. Chaussee, 399 B.R. at 241." }, { "docid": "14336989", "title": "", "text": "value of the proper: ty, $47,240) pursuant to 11 U.S.C. § 506(d). L & N objected to the Plan, contending that it impermissibly modified L & N’s rights as a creditor secured only by an interest in Debtors’ principal residence, in violation of 11 U.S.C. § 1322(b)(2). The Bankruptcy Court denied confirmation of the Plan. Debtors filed a motion for reconsideration, which was denied. Debtors then filed a notice of appeal. STANDARD OF REVIEW This court must uphold the Bankruptcy Court’s findings of fact unless they are clearly erroneous. Conclusions of law are reviewed de novo. Daniels-Head & Assoc. v. Mercer, Inc. (In re Daniels-Head & Assoc.), 819 F.2d 914, 918 (9th Cir.1987). DISCUSSION I. Timeliness of the Appeal L & N contends that Debtors’ appeal was not timely filed. L & N argues that pursuant to Bankruptcy Rule 8002(a), Debtors had ten days from the entry of the initial order in which to file an appeal. L & N claims that Debtors obtained a twenty-day extension, pursuant to Bankruptcy Rule 8002(c), but that Debtors did not file the appeal until thirty-one days after the entry of the initial order. Debtors correctly note that if a timely motion is filed under bankruptcy Rule 9028 to alter or amend a judgment, the time for filing an appeal runs from the entry of the order denying the motion. Bankruptcy Rule 8002(b). In the Ninth Circuit, a motion for reconsideration is treated as a motion to amend a judgment. Bentley v. Bank of Coronado (In re Crystal Sands Properties), 84 B.R. 665, 668 n. 3 (Bankr. 9th Cir.1988) (citations omitted). The initial order was issued denying confirmation on April 26, 1988. Debtors filed the motion to reconsider on May 5, 1988, within ten days of the initial order. Until there was a ruling on that motion, Debtors could not have filed an appeal. The motion was denied on May 26, 1988, and Debtors filed a notice of appeal on May 27, 1988, well within the ten day rule. The appeal was timely filed. II. Additional Security L & N objected to the Plan" }, { "docid": "4568012", "title": "", "text": "The letter asserted the Appellants’ position that failure to release the account funds to the Appellants was a violation of the automatic stay, and informed Wells Fargo of Appellants’ intent to file a motion seeking attorney’s fees, sanctions, and punitive damages for the violation. On August 27, 2009, Appellants filed a motion (“Motion”) seeking sanctions pursuant to § 362(k) against Wells Fargo based upon its alleged intentional violation of the automatic stay-specifically, §§ 362(a)(3) and (a)(6). The bankruptcy court held a hearing on the Motion on September 15, 2009, took the matter under submission at that time, and issued its Memorandum decision on December 10, 2009, denying the Motion. The bankruptcy court's ruling was premised on its holding that exempt property never becomes property of the bankruptcy estate but remains at all times a debtor’s property. Accordingly, the bankruptcy court determined that no provision of § 362(a) covering property of the estate protected the account funds claimed exempt. Finally, the bankruptcy court determined that because Wells Fargo took no action to “collect, assess or recover” a prepetition claim it had against Appellants, it did not violate the automatic stay. Appellants timely filed their notice of appeal on December 18, 2009. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C. § 158. III.ISSUES 1. Whether the bankruptcy court erred when it concluded that exempt property never becomes property of the bankruptcy estate but remains at all times a debtor’s property. 2. Whether the Appellants had standing to file and prosecute the Motion. IV.STANDARDS OF REVIEW Whether property is property of the estate is a question of law reviewed de novo. White v. Brown (In re White), 389 B.R. 693, 698 (9th Cir. BAP 2008). Similarly, “[w]e review de novo whether the automatic stay provision of § 362(a) has been violated.” Cal. Employment Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1150 (9th Cir.1996) (citation omitted); Benz v. Dtric Ins. Co. (In re Benz), 368 B.R. 861, 864-65 (9th Cir. BAP 2007). De novo means review is independent," }, { "docid": "10707920", "title": "", "text": "the court denies the Defendants’ motions on Claim 6. 2. Claim 7: Constructive Fraudulent Transfer Under Section 548(a)(1)(B). In the alternative, the Trustee argues that the Jewel Waiver constitutes a constructive fraudulent transfer under section 548(a)(1)(B). At trial, and on his motion, the Trustee has the burden of proving, by preponderance of the evidence, that: (1) Brobeck had an interest in its Unfinished Business; (2) a transfer of that interest occurred within one year of the filing of the bankruptcy petition; (3) Bro-beck was insolvent at the time of the transfer or became insolvent as a result thereof; and (4) Brobeck received “less than a reasonably equivalent value in exchange for” the Jewel Waiver. 3dfx, 389 B.R. at 863; Spear v. Global Forest Prods. (In re Heddings Lumber & Bldg. Supply, Inc.), 228 B.R. 727, 729 (9th Gir.BAP1998). Conversely, on the Defendants’ summary judgment motions, once the Trustee has made a prima facie case that Brobeck received less than a reasonably equivalent value, the Defendants have the burdenv to show they provided Brobeck a reasonably equivalent value in exchange for the Jewel Waiver. Johnson v. Drew, 218 Cal.App.2d 614, 619, 32 Cal.Rptr. 540 (1963). Since the first three elements have been established, only the fourth element is at issue in these motions. a. Reasonably Equivalent Value. Determining whether a debtor received a reasonably equivalent value is a two-step process. Jordan v. Kroneberger (In re Jordan), 392 B.R. 428, 441 (Bankr.D.Idaho 2008); Barber v. Dunbar (In re Dunbar), 313 B.R. 430, 437 (Bankr.C.D.Ill.2004). First, the court must determine that the debtor received value in exchange for the transfer. Id. “Value” is defined by the Bankruptcy Code for fraudulent transfer purposes as “property, or satisfaction or seeming of a present or antecedent debt of the debtor....” See 11 U.S.C. § 548(d)(2)(A); Wyle v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589, 595 (9th Cir.1991). A transfer is for value if one is the quid pro quo of the other. Pummill v. Greensfelder, Hemker & Gale (In re Richards & Conover Steel, Co.), 267 B.R. 602, 612 (8th Cir." }, { "docid": "17585726", "title": "", "text": "set forth above, we REVERSE the bankruptcy court’s order denying the Bank’s motion for relief from the automatic stay, and REMAND to the bankruptcy court for entry of an order granting the Bank’s motion for relief from the automatic stay. . Although the Debtor did not designate the plan as part of the record on appeal, we may take judicial notice of the bankruptcy court’s docket and imaged papers when the parties do not supply a comprehensive record on appeal. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n. 9 (9th Cir. BAP 2003). . Unless expressly stated otherwise, all references to \"Bankruptcy Code\" or to specific statutory sections shall be to the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. § 101, et seq. . As discussed later, In re Beeman involved the question of whether, under § 1322(c)(1), a chapter 13 debtor could cure a default on a mortgage note through his plan when the foreclosure auction occurred prior to the bankruptcy filing, but the seller had not yet recorded the foreclosure deed. . See, e.g., In re Connors, 497 F.3d 314 (3d Cir.2007); Cain v. Wells Fargo Bank, N.A. (In re Cain), 423 F.3d 617 (6th Cir.2005); In re Smith, 85 F.3d 1555, 1558 n. 3 (11th Cir.1996); McCam v. WyHy Fed. Credit Union (In re McCam), 218 B.R. 154 (10th Cir. BAP 1998); In re Medaglia, 402 B.R. 530 (Bankr.D.R.I.2009); In re McKinney, 344 B.R. at 5-6; In re Crichlow, 322 B.R. at 234. . See, e.g., In re Wescott, 309 B.R. 308, 314 (Bankr.E.D.Wis.2004) (allowing cure when petition filed after judicial foreclosure sale but before judicial confirmation of the sale); Randall v. Equicredit Fin. Serv. Corp. (In re Randall), 263 B.R. 200, 202 (D.N.J.2001) (holding that § 1322(c)(1) right to cure is not extinguished until rights of redemption have expired under state law); In re Spencer, 263 B.R. 227, 231 (Bankr.N.D.Ill.2001) (referring to state law and finding that, in Illinois, \"foreclosure sale is not complete until an order confirming the sale has been entered”); In re Beeman, 235" }, { "docid": "20175519", "title": "", "text": "had jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A). We address our jurisdiction under 28 U.S.C. § 158 below. III.ISSUE Whether § 362(h) terminates the automatic stay on all personal property of the estate pledged to secure a scheduled debt or only terminates the stay on personal property specifically identified in a debt- or’s schedules as securing the debt. IV.STANDARDS OF REVIEW We review issues of statutory construction and conclusions of law, including the bankruptcy court’s interpretation of the Bankruptcy Code, de novo. Am. Express Bank, FSB v. Smith (In re Smith), 418 B.R. 359, 364 (9th Cir. BAP 2009); Dumont v. Ford Motor Credit Co. (In re Dumont), 383 B.R. 481, 484 (9th Cir. BAP 2008), aff'd, 581 F.3d 1104 (9th Cir.2009). V.DISCUSSION A. Jurisdiction We lack jurisdiction over an appeal that is not timely filed. Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767 (9th Cir.1994) (requirement of timely notice of appeal is mandatory and jurisdictional). Western Capital contends that this appeal is untimely. See Rule 8002 (a notice of appeal must be filed within 14 days of the date of the entry of the judgment or order). According to Western Capital, the Order Granting Relief, entered on October 16, 2009, determined that the automatic stay terminated under § 362(h) on the Collateral, and therefore, the Trustee should have appealed that order. Although the bankruptcy court granted relief pursuant to § 362(h), the Trustee’s argument that § 362(h) applies only to personal property identified by the Debtor on her Schedules was not at issue. The Trustee did not object to the Stay Relief Motions because the personal property subject to the Stay Relief Motions was either scheduled or the Trustee had determined it was of no value to the estate. When Western Capital refused to postpone the May Sale of personal property, which was not the subject of the Order Granting Relief or among that described on the Schedules, the Trustee filed the Motion to Enforce. The bankruptcy court’s subsequent ruling in the Order Denying Enforcement essentially amended the Order Granting Relief and was a final" }, { "docid": "19923685", "title": "", "text": "AMENDED DECISION and ORDER ON OBJECTION TO CONFIRMATION PHILIP H. BRANDT, Bankruptcy Judge. Before the court is Debtors’ motion to confirm their Second Amended Chapter 13 Plan, filed 19 November 2008 (docket no. 87) (“Plan”). U.S. Bank N.A., “as Trustee for CMLTI 2007-WFHE2 and its servicing agent Wells Fargo Bank, N.A.” (“U.S. Bank” or “Bank”) has objected to plan confirmation on the ground that the proposed Plan impermissibly modifies its rights in violation of 11 U.S.C. § 1322(b)(2) . The Bank does not question the Plan’s feasibility or the Debtors’ good faith. Debtors’ Plan may have been precipitated by U.S. Bank’s motion for adequate protection of 15 October 2008 (docket no. 32). Therein the Bank alleged Debtors were not making payments to it, and sought adequate protection payments pending confirmation. That motion is also before the court. Notwithstanding In re Proudfoot, 144 B.R. 876 (9th Cir. BAP 1992), and In re Gavia, 24 B.R. 573 (9th Cir. BAP 1982), bankruptcy judges in this district have approved chapter 13 plans which do not require payments to home mortgage (or deed of trust) creditors when the plans: (1) grant the mortgage creditor relief from stay immediately, (2) specify a date, not significantly beyond the date the creditor could otherwise conduct a foreclosure sale, by which the debtor must sell the property, or there is an equity cushion or other adequate protection sufficient to protect the creditor beyond that date, (3) provide that the debtor will enter into a stipulated order for relief from stay at the creditor’s request; and (4) include a provision that in any conflict between the plan and a stipulated order for relief from stay, the stipulation controls. Debtors’ Plan meets those requirements; U.S. Bank’s objection will be OVERRULED and its motion for adequate protection DENIED. The rationales follow. I. FACTS Debtors filed this chapter 13 case on 28 February 2008. They propose to: [s]ell the [PJroperty ... on or before April 30, 2009, to pay mortgage creditors in full or such other amount as the creditors may agree to accept under a short-sale arrangement. Debtor will stipulate to" }, { "docid": "5342938", "title": "", "text": "(No. 10-50980). As pointed out by Huntington, in ruling on whether a complaint states a claim for relief, a court may consider documents that are attached to the complaint or are referred to in the complaint. See Fed.R.Civ.P. 10(c); Young v. Lepone, 305 F.3d 1, 11 (1st Cir.2002). This rule is not applicable in this proceeding because the PTM disclosure statement is not attached to nor referred to in the amended complaint. Even so, Huntington argues that the contents of the disclosure statement should be considered because the court can “take judicial notice of its own record.... ” While it is correct that a bankruptcy court can take judicial notice of its records, the fact that it does so does not mean that doing so will “magically result in the contents of the document attaining a sufficient degree of reliability to overcome evidentia-ry objections such as hearsay to its admissibility in a trial before a bankruptcy court.” Barry Russell, Bankruptcy Evidence Manuel § 201:5 (2010). The contents of a document on file with the court may be binding and admissible as an admission by the party who filed the document, such as the contents of a debtor’s schedules being admissible against the debtor. E.g. In re Kaskel, 269 B.R. 709 (Bankr.D.Idaho 2001); Larson v. Groos Bank. N.A., 204 B.R. 500 (W.D.Tex.1996). The PTM disclosure statement, however, was not filed by the Plaintiff and there is nothing that indicates that he has approved or adopted the PTM disclosure statement or any of the other documents cited by Huntington. Hence, there is no basis for imputing the contents of such documents to the Plaintiff and considering the contents of such documents in ruling on a motion to dismiss the Plaintiffs amended complaint. See In re Kirkland, 572 F.3d 838, 839-40 (10th Cir.2009) (debtor’s schedules not evidence against trustee); In re Plourde, 418 B.R. 495 n. 13 (1st Cir. BAP 2009). There is no argument that the facts alleged in the amended complaint, stand ing alone, establish that the Debtors received reasonably equivalent value and, thus, Huntington’s argument that reasonably equivalent value exists" }, { "docid": "10707921", "title": "", "text": "equivalent value in exchange for the Jewel Waiver. Johnson v. Drew, 218 Cal.App.2d 614, 619, 32 Cal.Rptr. 540 (1963). Since the first three elements have been established, only the fourth element is at issue in these motions. a. Reasonably Equivalent Value. Determining whether a debtor received a reasonably equivalent value is a two-step process. Jordan v. Kroneberger (In re Jordan), 392 B.R. 428, 441 (Bankr.D.Idaho 2008); Barber v. Dunbar (In re Dunbar), 313 B.R. 430, 437 (Bankr.C.D.Ill.2004). First, the court must determine that the debtor received value in exchange for the transfer. Id. “Value” is defined by the Bankruptcy Code for fraudulent transfer purposes as “property, or satisfaction or seeming of a present or antecedent debt of the debtor....” See 11 U.S.C. § 548(d)(2)(A); Wyle v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589, 595 (9th Cir.1991). A transfer is for value if one is the quid pro quo of the other. Pummill v. Greensfelder, Hemker & Gale (In re Richards & Conover Steel, Co.), 267 B.R. 602, 612 (8th Cir. BAP 2001); Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1415 (8th Cir.1996) vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997)(the language “in exchange for” in section 548 contemplates a quid pro quo). Second, if there was value in exchange, the court must determine whether the value of what was transferred was reasonably equivalent to what the debtor received. Jordan, 392 B.R. at 441; Dunbar, 313 B.R. at 437. “In determining whether a transfer has been for an exchange of reasonably equivalent value, the court analyzes all the circumstances surrounding the transfer.” 3dfx, 389 B.R. at 862, citing 5 Collier on Bankruptcy ¶ 548.05[1][b] at 548-35 (15th ed. rev.2002). See Jordan, 392 B.R. at 441 (holding and citing same). The determination of reasonable equivalence must be made as of the time of the transfer. BFP v. Resolution Trust Corp., 511 U.S. 531, 546, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). Reasonable equivalence does not require exact equality in value, but means “approximately equivalent” or “roughly" }, { "docid": "12431110", "title": "", "text": "in the third bankruptcy case, also went unpaid. (Case No. 1480885, Docs. 40, 45). It appears that the Danleys have stiff-armed every lawyer who has represented them. (Stacy Dan-ley played running back for Auburn University’s football team.) . The Court will discuss in rem relief in detail in Part 11(D), infra. . The Danleys posited in their response to Liberty Bank's motion for relief from the automatic stay that it would cost $60,000 to repair the property. (Doc. 48, para.6). However, they did not offer any evidence at the September 16, 2015 hearing to support their assertion. . The Court does not consider the Danleys' tardily filed schedules to be \"newly discovered evidence” within the purview of Rule 59(e). . The amount owed to Chase Bank was taken from its motion for relief from stay in the Danleys’ second bankruptcy case. The Court does not have an exact figure for the amount owed Chase Bank in the third bankruptcy case, but it was undoubtedly much higher since they apparently did not make a payment on Chase Bank’s mortgage in the intervening years. (Case No. 14-80885, Doc. 33) (citing 66 missed mortgage payments from February 2009 through July 2014). . Stacy Danley filed an affidavit in which he claims that a case administrator from 'the Clerk's office granted him an extension to file his schedules. (Doc. 71). The Clerk’s office reported that he called several times, but that it did not grant him an extension. Stacy likewise blames the Bankruptcy Administrator for his tardiness, based on her statement that she did not file the notice of dismissal for failure to file schedules, because those notices are generated by the Clerk’s office. However, this is not Stacy’s first bankruptcy rodeo, or even his first ride in Chapter 11, and the Court expects him to command a clearer understanding of his obligations than it would a first-time filer. See In re Smith, 536 B.R. 478, 482 (Bankr.M.D.Ala.2015) (\"a debtor who makes frequent use of the bankruptcy courts is expected to be more knowledgeable of his obligations than a naif who may be truly" } ]

[ { "docid": "3087517", "title": "", "text": "of judicial estoppel. First, the later position must be clearly inconsistent with the earlier position. Also, the facts at issue should be the same in both cases. Finally, the party to be estopped must have convinced the first court to adopt its position; a litigant is not forever bound to a losing argument. Id. at 264-65 (citations omitted). As further observed in Cassidy, “an appellate court may raise [judicial] estoppel on its own motion in an appropriate case.” 892 F.2d at 641 (citation omitted). The Court opts to exercise its discretion at the trial level. There should be an end to the determination of the discharge-ability of the unpaid debt owed by Defendant to Plaintiff in this Court and that time is now. The Court holds that Defendant should be judicially estopped from changing his position in this proceeding and contending that the unpaid portions of the debt should be dischargeable, in light of his contrary legal position in the prior adversary proceeding. Defendant has taken an inconsistent position of law in this matter regarding the dischargeability of the unpaid debt from the posture he agreed to in the prior adversary proceeding, despite his continued denial of the underlying wrongful conduct. It is clear to the Court that Defendant is seeking the proverbial second bite at the dischargeability determination apple. The Agreed Judgment Order embodies the parties’ agreement to settle. Hence, the strong policy of court sanctioned settlements should be enforced in this matter and obviate the delay, expense and risks attendant to further litigation between the parties on the issue of whether the unpaid debt is nondischargeable now that Defendant has filed another bankruptcy petition. The functional effect of the Agreed Judgment Order was the equivalent of Defendant voluntarily agreeing to repay the debt. This was in keeping with 11 U.S.C. § 524(f) which provides in pertinent part that: “[n]othing contained in ... this section prevents a debt- or from voluntarily repaying any debt.” The result, with regard to this unpaid debt, is analogous to that which occasionally occurs under 11 U.S.C. § 727(a)(10) when “the court approves a" } ]

[ { "docid": "7876341", "title": "", "text": "does not apply”); Folio, 134 F.3d at 1217-18; McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir.1996) (internal quotation marks and citation omitted) (part of threshold inquiry for application of judicial estoppel is whether party to be estopped “assert[ed] either or both of the inconsistent positions in bad faith-ie., with intent to play fast and loose with the court”); Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358, 362 (3d Cir.1996) (internal quotation marks and citation omitted) (judicial estoppel doctrine “not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from playing fast and loose with the courts”; doctrine “does not apply when the prior position was taken because of a good faith mistake rather than as part of a scheme to mislead the court”; inconsistency “must be attributable to intentional wrongdoing”); Matter of Cassidy, 892 F.2d at 642 (judicial estoppel should not be applied “where it would work an injustice, such as where the former position was the product of inadvertence or mistake”); Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir.1973) (applying Texas law on judicial estoppel; “the rule looks toward cold manipulation and not an unthinking or confused blunder”). Browning maintains that, because of the nondisclosure in Coastal’s bankruptcy schedules and its lift-stay stipulation, plaintiffs, as Coastal’s successors, are judicially estopped (except for the tortious interference claim). Despite the undisputed facts that Coastal was aware of, but did not disclose, the claims, the bankruptcy court rejected judicial estoppel, stating that, from the inception of Coastal’s adversary proceeding, Browning, the Trustee, and Westinghouse were aware of that action. That statement, however, is in the section of the opinion addressing equitable estoppel (which, of course, requires detrimental reliance; that defense is no longer at issue). Because the nondisclosure is not discussed in the part on judicial estoppel, it is unclear whether, in rejecting such estoppel, the court relied on the parties’ awareness of the adversary proceeding. With respect to the lift-stay stipulation, the bankruptcy court noted that it was prepared by Westinghouse’s attorneys and" }, { "docid": "10643532", "title": "", "text": "action by the plaintiff against the defendant .... ”). Therefore, contrary to Ries’s assertion, the initial proceeding would have allowed Ries to effectively litigate or reserve the fraud claims he currently asserts. Because all of the requirements for res judicata have been met, the bankruptcy estate’s fraud claims that Ries now asserts are barred unless, as Ries argues, Paige is judicially estopped from asserting the res judicata defense. We address this argument below. III. Judicial Estoppel Ries argues that even if res judicata applies, Paige is judicially estopped from invoking the res judicata defense because Paige’s counsel took the position in his oral argument at the sanctions hearing, contrary to his present argument, that Ries would be able to pursue his fraud claims in a subsequent adversary proceeding. “Judicial estoppel is an equitable doctrine that ‘prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’ ” Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir.2008) (quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir.2003)). In Superior Crew-boats, Inc. v. Primary P&I Underwriters (In re Superior Crewboats, Inc.), we described the doctrine’s purpose and defined its requirements as follows: The purpose of the doctrine is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts to suit the exigencies of self interest. Importantly, because judicial estoppel is designed to protect the judicial system, not the litigants, detrimental reliance by the party opponent is not required. Generally, judicial estoppel is invoked where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. This circuit, however, has recognized three particular requirements: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent. 374 F.3d 330, 335 (5th Cir.2004) (internal citations and quotation marks omitted). The bankruptcy judge in" }, { "docid": "7272816", "title": "", "text": "Judicial Estoppel The district court then concluded as an apparent follow-up to its ruling on constructive receipt, that because Mr. Wyler claimed only $50,000 per year in percentage compensation when declaring his taxable income to the I.R.S., he was judicially estopped from claiming the right to waive the provision. “Judicial estoppel applies when a party’s position is ‘tantamount to a knowing misrepresentation to or even fraud on the court.’” Johnson v. State of Oregon, 141 F.3d 1361, 1369 (9th Cir.1998) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996)). If a litigant’s current position is manifestly inconsistent with a prior position such as to “amount to an affront to the court, judicial estoppel may apply.” Id. The district court’s use of judicial estoppel in this case was not appropriate. The doctrine of judicial estoppel requires, inter alia, a knowing antecedent misrepresentation by the person or party alleged to be estopped and prevents the party from tendering a contradictory assertion to a court. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). Here, the fact that Mr. Wyler claimed to the I.R.S. $50,000 in percentage compensation annually on his taxes was not a misrepresentation; he actually received only $50,000 per year. And, as explained above, the fact that Mr. Wyler claimed $50,000 in percentage compensation on his taxes does not necessarily contradict Wyler Summit’s current claim that the installment payment provision was included in the contract for the sole benefit of Mr. Wyler, and that it can now be waived. The record does not contain any evidence that Mr. Wyler ever told the I.R.S. in connection with his taxes that the installment payment provision was not subject to waiver. Moreover, as far as the contract is concerned, the waiver operates prospectively, not retroactively. IV Who Was Intended to Benefit from the Installment Payment Provision? The district court held, as a matter of law, that the installment payment provision was included in the contract for the mutual benefit of Mr. Wyler and MGM, not for the sole benefit of Mr. Wyler. Accordingly, Wyler Summit was precluded from" }, { "docid": "23667629", "title": "", "text": "as a lump sum. Id. at 1190. We reversed the district court’s ruling because Wyler’s representations to the I.R.S. about the money he received each preceding year were accurate; there was no inconsistency in his positions with the I.R.S. and the district court, let alone a knowing misrepresentation. Id. In Johnson, a case cited and relied upon by Wyler Summit, we explained that, “[i]f incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel does not apply.” 141 F.3d at 1369. There, we reversed a magistrate judge’s application of judicial estoppel against a plaintiff suing for disability discrimination. Id. at 1363-64. Before filing her disability suit, Johnson represented that she was disabled in applications for benefits from her insurance company and from the Social Security Administration. Id. at 1364-65. She also wrote a letter to the I.R.S. explaining her inability to work and that her disabilities caused her to file her 1992 tax return late. Id. at 1365. The magistrate judge held that, because of those statements, Johnson was estopped from asserting that she was “capable of performing the essential functions of her job” under the Americans with Disabilities Act. Id. at 1366. Johnson’s representations to her insurance company and the Social Security Administration, however, were not actually inconsistent with the claims in her disability suit, and her statements to the I.R.S. were made only in the context of seeking leniency for a late return, and not in a proceeding adjudicating a claim of disability. Id. at 1370-71. We explained that her representations were evidence to be weighed in evaluating her discrimination claim, but that they were not “so inconsistent that they amount to an affront to the court.” Id. at 1369. The Supreme Court has instructed that there are no “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.” New Hampshire, 532 U.S. at 751, 121 S.Ct. 1808. “[Wjhere the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later" }, { "docid": "16842384", "title": "", "text": "Judicially Estopped from Arguing that Virginia Law Applies to This Case In its summary judgment motion, plaintiff relies almost exclusively on New Jersey contract law. In its opposition papers, defendant agrees that New Jersey law applies to this case. However, plaintiff contends for the first time in its reply that Virginia’s parol evidence rules should apply and that it never argued that New Jersey law applies to this case. (Pl.’s Reply at 3.) Defendants argue that plaintiff should be estopped from taking this position because it is contrary to its reliance on New Jersey law throughout the litigation. In its January 21, 1998 answers to defendants’ interrogatories, plaintiff maintained that New Jersey law applied to the July, 1988 agreement, the November 7, 1989 letter from NUS to Chesapeake, and the relationship between the parties. Before plaintiff submitted its reply papers, it had relied on the contract laws of New Jersey, not Virginia. Defendants request that the Court strike that portion of plaintiffs reply brief which discusses the parol evidence rule under Virginia law. The Third Circuit has recognized the doctrine of judicial estoppel, “a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous proceeding. It is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from playing fast and loose with the courts.” In re Chambers Dev. Co., 148 F.3d 214, 229 (3d Cir.1998)(quoting Ryan Operations, G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir.1996)) (citations and internal quotations omitted). An inconsistent position alone does not trigger the doctrine, unless intentional self-contradiction is used as a means of obtaining unfair advantage. Thus, the doctrine of judicial estoppel does not apply when the prior position was taken because of a good faith mistake rather than as part of a scheme to mislead the court. An inconsistent argument sufficient to invoke judicial estoppel must be attributable to intentional wrongdoing. Chambers, 148 F.3d at 229, (citing Ryan, 81 F.3d at 362). “The basic principle ..." }, { "docid": "13840900", "title": "", "text": "and fraudulent misrepresentation against defendant creditor because plaintiff failed to disclose those claims in bankruptcy proceedings despite citing defendant’s improper activities as the catalyst for its bankruptcy filing); In re Okan’s Foods, Inc., 217 B.R. 739, 754-56 (Bankr.E.D.Pa.1998) (barring plaintiffs civil rights claim against defendant because plaintiff represented the contingent claim to the bankruptcy court as having little value and later filed a claim for $750,000, an amount that would have satisfied all of plaintiffs outstanding debts). But see Ryan, 81 F.3d at 362-65 (rejecting application of judicial estoppel based on lack of evidence of plaintiffs bad faith in failing to disclose contingent claims in pri- or bankruptcy proceeding). In determining when to apply judicial estoppel to bar a seemingly inconsistent litigation stance, this court must consider (1) whether the party to be estopped has taken two positions that are “irreconcilably inconsistent;” (2) whether the change of position was in “bad faith” or was coupled with the intent of playing “fast and loose” with the court; and (3) whether the application of the doctrine is “tailored to address the harm identified” and “no lesser sanction would adequately remedy the damage done by the litigant’s misconduct.” Krystal, 337 F.3d at 319-320 (quoting Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir.2001)). 1. Plaintiff’s Inconsistent Positions In order to apply judicial estop-pel to bar Plaintiffs claims, this court must first find that he is currently asserting a position that is “irreconcilably inconsistent” with one he asserted in a prior proceeding. Montrose, 243 F.3d at 777. It is not required that the litigant arguing in favor of estoppel was a party to the prior proceeding nor that he or she was in privity with a party to that proceeding. Ryan, 81 F.3d at 360-61 (“Where the contentions are mutually exclusive, it is irrelevant that they are asserted against diverse parties ... The integrity of the court is affronted by the inconsistency notwithstanding the lack of identity of those against whom it is asserted.”). All that is necessary to meet this first prong is that the party to be" }, { "docid": "7876340", "title": "", "text": "Circuit has explained that the “judicial acceptance” requirement “does not mean that the party against whom the judicial estoppel doctrine is to be invoked must have prevailed on the merits. Rather, judicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition”. Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 473 (6th Cir.1988). Some courts have imposed additional requirements. For example, the Fourth Circuit holds that the position must be one of fact instead of law. Folio, 134 F.3d at 1217-18. Contra, Matter of Cassidy, 892 F.2d at 642 (“the change of position on the legal question is every bit as harmful to the administration of justice as a change on an issue of fact”). And, many courts have imposed the additional requirement that the party to be estopped must have acted intentionally, not inadvertently. E.g., Johnson, 141 F.3d at 1369 (“If incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel does not apply”); Folio, 134 F.3d at 1217-18; McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir.1996) (internal quotation marks and citation omitted) (part of threshold inquiry for application of judicial estoppel is whether party to be estopped “assert[ed] either or both of the inconsistent positions in bad faith-ie., with intent to play fast and loose with the court”); Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358, 362 (3d Cir.1996) (internal quotation marks and citation omitted) (judicial estoppel doctrine “not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from playing fast and loose with the courts”; doctrine “does not apply when the prior position was taken because of a good faith mistake rather than as part of a scheme to mislead the court”; inconsistency “must be attributable to intentional wrongdoing”); Matter of Cassidy, 892 F.2d at 642 (judicial estoppel should not be applied “where it would work an injustice, such as where the former position was the product of inadvertence or mistake”);" }, { "docid": "6756845", "title": "", "text": "on April 10, 2004. II. Analysis A. Judicial estoppel The Fourth Circuit has characterized the doctrine of judicial estoppel as “an equitable doctrine that exists to prevent litigants from playing ‘fast and loose’ with the courts — to deter improper manipulation of the judiciary.” Folio v. City of Clarksburg, W.Va., 134 F.3d 1211, 1217 (4th Cir.1998) (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir.1995)). The court has developed the following test for the doctrine: In order for judicial estoppel to apply, (1) the party to be estopped must be advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position must be one of fact, rather than law or legal theory; (3) the prior position must have been accepted by the court in the first proceeding; and (4) the party to be es-topped must have acted intentionally, not inadvertently. Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283, 292 (4th Cir.1998) (citing Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996), cert. denied, 519 U.S. 1113, 117 S.Ct. 954, 136 L.Ed.2d 841 (1997)). While the Fourth Circuit apparently has not addressed the application of judicial estoppel to a case in which a debtor fails to schedule a potential claim in a bankruptcy filing but later asserts that claim, other circuits have done so, as have state courts and lower courts in this circuit. See, e.g., Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988); Browning v. Levy, 283 F.3d 761 (6th Cir.2002); In re USinternetworking, Inc., 310 B.R. 274 (Bankr.D.Md.2004); WinMark Ltd. P’ship v. Miles & Stockbridge, 345 Md. 614, 693 A.2d 824 (1997). Federal bankruptcy law requires a debtor to list in the initial petition, inter alia, a “schedule of assets.” 11 U.S.C. § 521(1). Official Form 6 for Schedule B requires a debtor to list “all personal property of the debtor of whatever kind,” and property of a bankruptcy estate is defined broadly to include “all legal or equitable interests of the debtor in property as of commencement" }, { "docid": "9885677", "title": "", "text": "party in interest is presently pursuing this suit, which dictates dismissal would be improper. Accordingly, defendants’ motion to dismiss for lack of standing is denied. b. Judicial Estoppel Defendants also move to dismiss on judicial estoppel grounds. The doctrine of judicial estoppel is invoked to protect the integrity of the judicial process by estopping parties from asserting contradictory positions in court to derive an unfair advantage. It is “an equitable concept providing that a party who prevails on one ground in a lawsuit may not in another lawsuit repudiate that ground.” United States v. Christian, 342 F.3d 744, 747 (7th Cir.2003) (citing United States v. Hook, 195 F.3d 299, 306 (7th Cir.1999)). Judicial estoppel may apply if “(1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; (3) the party to be estopped convinced the first court to adopt its position; and (4) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. Judicial estoppel is not appropriate where “the former position was the product of inadvertence or mistake.” In re Cassidy, 892 F.2d 637, 642 (7th Cir.1990) (citations omitted). Judicial estoppel is not warranted here. Defendants cannot show plaintiff intended to deceive the bankruptcy court. See In re FV Steel & Wire Co., No. 04-22421-svk, 2006 WL 2536445, at *6, (Bkrtey.E.D.Wis. Sept.l, 2006) (denying judicial estoppel claim when party reopened Chapter 7 case to include claim). Moreover, Swearingen-El properly reopened his bankruptcy case and is presently pursuing this suit for the benefit of his creditors. This more than distinguishes Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir.2006), cited by defendants, where the court highlighted the absence of any such effort in applying judicial estoppel. Id. at 448 (“And if Cannon-Stokes were really making an honest attempt to pay her debts, then as soon as she realized that it had been omitted, she would have filed amended schedules and moved to reopen the bankruptcy, so that the creditors could benefit from any" }, { "docid": "23667628", "title": "", "text": "decided that Frosch’s position was so fraught with error, since the Monroe estate continued to make the same representations about Monroe’s domicile as Frosch did well past the latter’s demise. In Wyler Summit, we explained that “[i]f a litigant’s current position is manifestly inconsistent with a prior position such as to amount to an affront to the court, judicial estoppel may apply.” Id. (quotation marks omitted). There, the plaintiff was owed $1.5 million in profit participation payments under a 1958 contract for William Wyler to direct the film Ben Hur. Id. at 1188-89. The Wyler contract called for $50,000 annual payments of profit participation proceeds, but in 1995, Wyler’s successor in interest sought to waive the annual payment term and collect the remaining funds in a lump sum. Id. at 1189. The district court held that “because Mr. Wyler claimed only $50,000 per year in percentage compensation when declaring his taxable income to the I.R.S., he was judicially estopped from claiming the right to waive the provision” and collect the remaining balance due to him as a lump sum. Id. at 1190. We reversed the district court’s ruling because Wyler’s representations to the I.R.S. about the money he received each preceding year were accurate; there was no inconsistency in his positions with the I.R.S. and the district court, let alone a knowing misrepresentation. Id. In Johnson, a case cited and relied upon by Wyler Summit, we explained that, “[i]f incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel does not apply.” 141 F.3d at 1369. There, we reversed a magistrate judge’s application of judicial estoppel against a plaintiff suing for disability discrimination. Id. at 1363-64. Before filing her disability suit, Johnson represented that she was disabled in applications for benefits from her insurance company and from the Social Security Administration. Id. at 1364-65. She also wrote a letter to the I.R.S. explaining her inability to work and that her disabilities caused her to file her 1992 tax return late. Id. at 1365. The magistrate judge held that, because of those statements, Johnson was estopped" }, { "docid": "3957079", "title": "", "text": "of selling gasoline. See S.C.Code Ann. § 39-5-330. The thrust of Havird’s argument here is that Marathon should be judicially estopped from claiming it is a separate entity from Emro, because that position is at odds with the position Marathon took in Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214 (6th Cir.1985). In Russ’ Kwik Car Wash, the plaintiff, Russ’ Kwik Car Wash, brought an antitrust action against Marathon for allegedly selling gasoline to Emro for less than it did to Russ’ Kwik Car Wash. In that case, Marathon took the position that a wholly-owned subsidiary is not a separate entity for purposes of the Sherman Act, 15 U.S.C. § 1, or the Robinson-Patman Act, 15 U.S.C. § 13a. Id. at 215-16. In the case at bar, however, Marathon asserts that, for purposes of the UTPA, it is a separate entity from Emro. We believe the doctrine of judicial estoppel should not apply in this case. “Judicial estoppel is an equitable doctrine that exists to prevent litigants from playing ‘fast and loose’ with the courts — to deter improper manipulation of the judiciary.” Folio v. City of Clarksburg, West Virginia, 134 F.3d 1211, 1217 (4th Cir.1998) (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir.1995)). In order for judicial estoppel to apply, (1) the party to be es-topped must be advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position must be one of fact, rather than law or legal theory; (3) the prior position must have been accepted by the court in the first proceeding; and (4) the party to be estopped must have acted intentionally, not inadvertently. See Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 954, 136 L.Ed.2d 841 (1997). Judicial estoppel should not apply in this case because Havird’s argument fails on the first Lowery requirement. In Russ’ Kwik Car Wash, Marathon’s position was that a corporation is legally incapable of conspiring with its subsidiary in violation of the Sherman Act," }, { "docid": "14880552", "title": "", "text": "However, “[f]ederal law governs the application of judicial estoppel in federal courts.” Johnson v. Oregon, 141 F.3d 1361, 1364 (9th Cir.1998); Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 602-03 (9th Cir.1996). Judicial estoppel, sometimes also known as the doctrine of preclusion of inconsistent positions, precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. Rissetto, 94 F.3d at 601. The rationale for the doctrine was set forth in Rissetto as follows: The policies underlying preclusion of inconsistent positions are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings.... Judicial estop-pel is intended to protect against a litigant playing fast and loose with the courts.... Because it is intended to protect the dignity of the judicial process, it is an equitable doctrine invoked by a court at its discretion. Id., quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991). See also, Meronk, 249 B.R. at 215; Scovis, 231 B.R. at 342. The inconsistent position taken, according to the Bank, was the application for rezoning approval, which not only omitted mention of the intent to reside, but asked the County for a light industrial classification within which residential uses were expressly prohibited. By applying for this reclassification, Debtor essentially made an assertion to the commission that no residential uses were intended or contemplated, as none were allowed within that zone. Having thus necessarily disavowed residency, Debtor now takes the position that residence was both proper and sufficient to support exemption of up to $50,000 of that Property’s value, and he attempts to leverage that exemption for the purpose of avoiding several judgment liens under § 522(f). This new position is inconsistent with his earlier assertion of nonresidential use. That the Kootenai County zoning authorities may have been misled is not the Court’s focus or concern: Judicial estoppel enables a court to protect itself from manipulation. The interested party is thus the court in which a litigant takes" }, { "docid": "7187525", "title": "", "text": "nature of E-One’s appeal. Ownership of a common law mark does not necessarily afford the owner nationwide rights, as explained in detail above. Even the owner of a registered mark, who enjoys a presumption of nationwide priority to which AFE is not entitled, is not automatically entitled to national injunctive relief. See Armand’s Subway, 604 F.2d at 849-50. Therefore, the question of abandonment or post-abandonment ownership was not determinative of appropriate injunctive relief, and E-One’s failure to raise any issues pertaining to liability, ie., ownership of the mark, did not waive its challenge to the equitable remedy. See Westchester Media, 214 F.3d at 674; Allard, 146 F.3d at 360. We likewise conclude that E-One did not waive its challenge to the scope of the injunction by failing to raise it prior to trial, and that the case should be remanded to allow the district court to reconsider the scope of the injunction. IV. Finally, AFE contends that E-One is estopped from challenging the geographical scope of the injunction because (1) it “conceded” in its pleadings that AFE con ducted business throughout the United States and (2) it represented to the court during the injunction hearing that all liability issues had been tried. We cannot agree. AFE’s argument appears to rely on the doctrine of judicial estoppel, which protects against “improper manipulation of the judiciary.” Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th Cir.1998). Judicial estoppel applies if the party to be estopped intentionally asserts a position of fact that is inconsistent with a factual position taken during previous litigation. See id. at 1217-18. For this doctrine to apply, moreover, “the prior position must have been accepted by the court in the first proceeding.” Id. at 1218. We do not perceive any such inconsistent positions of fact being asserted by E-One. In its counterclaim against E-One for trademark infringement, AFE alleged that it used the mark “in North Carolina and throughout the United States.” J.A. 75. In reply, E-One admitted only that AFE sold fire trucks with the mark in North Carolina; E-One asserted that it was “without sufficient" }, { "docid": "7876339", "title": "", "text": "positions according to the exigencies of the moment.” United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993). The doctrine is generally applied where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice”. Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.1953) Most courts have identified at least two limitations on the application of the doctrine: (1) it may be applied only where the position of the party to be estopped is clearly inconsistent with its previous one; and (2) that party must have convinced the court to accept that previous position. See United States for use of American Bank v. C.I.T. Construction Inc. of Tex., 944 F.2d 253, 258 (5th Cir.1991) (“The ‘judicial acceptance’ requirement minimizes the danger of a party contradicting a court’s determination based on the party’s prior position and, thus, mitigates the corresponding threat to judicial integrity”); Matter of Cassidy, 892 F.2d at 641; Folio v. City of Clarksburg, W.V., 134 F.3d 1211, 1217-18 (4th Cir.1998). The Sixth Circuit has explained that the “judicial acceptance” requirement “does not mean that the party against whom the judicial estoppel doctrine is to be invoked must have prevailed on the merits. Rather, judicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition”. Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 473 (6th Cir.1988). Some courts have imposed additional requirements. For example, the Fourth Circuit holds that the position must be one of fact instead of law. Folio, 134 F.3d at 1217-18. Contra, Matter of Cassidy, 892 F.2d at 642 (“the change of position on the legal question is every bit as harmful to the administration of justice as a change on an issue of fact”). And, many courts have imposed the additional requirement that the party to be estopped must have acted intentionally, not inadvertently. E.g., Johnson, 141 F.3d at 1369 (“If incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel" }, { "docid": "7187526", "title": "", "text": "that AFE con ducted business throughout the United States and (2) it represented to the court during the injunction hearing that all liability issues had been tried. We cannot agree. AFE’s argument appears to rely on the doctrine of judicial estoppel, which protects against “improper manipulation of the judiciary.” Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th Cir.1998). Judicial estoppel applies if the party to be estopped intentionally asserts a position of fact that is inconsistent with a factual position taken during previous litigation. See id. at 1217-18. For this doctrine to apply, moreover, “the prior position must have been accepted by the court in the first proceeding.” Id. at 1218. We do not perceive any such inconsistent positions of fact being asserted by E-One. In its counterclaim against E-One for trademark infringement, AFE alleged that it used the mark “in North Carolina and throughout the United States.” J.A. 75. In reply, E-One admitted only that AFE sold fire trucks with the mark in North Carolina; E-One asserted that it was “without sufficient information either to admit or deny the remaining allegations” that AFE used the mark throughout the United States. J.A. 85. Likewise, E-One made no representations at the hearing that would support AFE’s estoppel argument. AFE claims that E-One represented to the district court that, following the trial, the only remaining question of fact to be resolved was whether and to what extent damages were appropriate — effectively an admission that liability had been resolved at trial. This is not a factual assertion for purposes of judicial estoppel; rather, it is a legal argument about what issues were raised and resolved at trial. By contrast, judicial estoppel exists to deter the use of facts from other litigation to manipulate a subsequent court that is unfamiliar with the prior factual positions assumed by the litigants. Here, of course, the district court that presided over both the trial and pre-trial proceedings is in the best position to detect inconsistent representations by the litigants. Accordingly, we reject AFE’s estoppel argument as well. V. For the foregoing reasons, we conclude" }, { "docid": "7876351", "title": "", "text": "judicial estoppel (acceptance of Coastal’s first position by the bankruptcy court) is satisfied. The stay was lifted based in part on the stipulation, which represented that Coastal’s intangible assets were worth less than $20,000; and that its assets were inadequate to satisfy its debt to Westinghouse. 3. Nevertheless, plaintiffs maintain that judicial estoppel is inapplicable because the nondisclosure was unintentional and inadvertent. On this record, plaintiffs’ and the bankruptcy court’s reliance on inadvertence to preclude judicial estoppel is misplaced. Therefore, the court abused its discretion. Our review of the jurisprudence convinces us that, in considering judicial estoppel for bankruptcy cases, the debtor’s failure to satisfy its statutory disclosure duty is “inadvertent” only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment. Two cases from the Third Circuit aptly illustrate the critical distinction between nondisclosures based on a lack of knowledge, and those where, as here, the debtor fails to satisfy its disclosure duty despite knowledge of the undisclosed facts. In Oneida, 848 F.2d 414, judicial estoppel barred a former Chapter 11 debtor from prosecuting against a bank claims not disclosed during the bankruptcy proceedings. The excuse for nondisclosure was not lack of knowledge; instead, that the bankruptcy case was never in a procedural posture for the claims to be properly asserted. Id. at 418. Although the court stopped short of holding that the nondisclosure was equivalent to taking a position that the claims did not exist, it concluded that the debtor’s acknowledgment of its debt to the bank, without any indication that the debt was disputed or subject to setoff (as is the situation here), constituted a position inconsistent with its later action against the bank. Id. at 419. On the other hand, in Ryan, 81 F.3d 355, the Third Circuit concluded that a Chapter 11 debtor’s earlier nondisclosure would not judicially estop the debtor from pursuing the claims outside of bankruptcy, because there was no evidence that the debtor acted in bad faith. Id. at 362. The debtor, a builder, asserted claims against the manufacturers and suppliers of an" }, { "docid": "6756844", "title": "", "text": "Calafiore and his wife filed a Chapter 7 Voluntary Petition for Bankruptcy in the Bankruptcy Court for the District of Maryland, with Dennis M. Jaworski as counsel. (Defs.’ Mot., Ex. B., Bankr.Pet.) Calafiore indicated in his deposition that while preparing for the bankruptcy filing, he discussed his potential claim against the defendants with Ja-worski and even considered the possibility of retaining Jaworski to represent him in the personal injury suit. (Deposition of James P. Calafiore, at 38-39.) In their schedule of assets, the Calafiores listed a $10,000 workers’ compensation claim, but did not list a potential claim against Genth-ner and Werner. (Bankr.Pet., Schedule B.) On March 22, 2004, Bankruptcy Judge Schneider granted the Calafiores a complete discharge from their debts. (Defs.’ Mot., Ex. E.) On that same day, Calafiore apparently signed a complaint form for a civil suit against Genthner and Werner, and on April 1, 2004, that complaint was filed in Baltimore City Circuit Court by Jeffrey L. Komin as counsel for Calafiore. (Defs.’ Mot., Ex. D.) The ease was removed to this court on April 10, 2004. II. Analysis A. Judicial estoppel The Fourth Circuit has characterized the doctrine of judicial estoppel as “an equitable doctrine that exists to prevent litigants from playing ‘fast and loose’ with the courts — to deter improper manipulation of the judiciary.” Folio v. City of Clarksburg, W.Va., 134 F.3d 1211, 1217 (4th Cir.1998) (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir.1995)). The court has developed the following test for the doctrine: In order for judicial estoppel to apply, (1) the party to be estopped must be advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position must be one of fact, rather than law or legal theory; (3) the prior position must have been accepted by the court in the first proceeding; and (4) the party to be es-topped must have acted intentionally, not inadvertently. Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283, 292 (4th Cir.1998) (citing Lowery v. Stovall, 92 F.3d 219, 224" }, { "docid": "21408311", "title": "", "text": "to disclose a pending legal claim as “a palpable fraud that the court will not tolerate, even passively.” Id. at 571. Seeking to preserve the reliability of bankruptcy disclosures for the benefit of creditors, the court reasoned the debtor “having obtained judicial relief on the representation that no claims existed, can not now resurrect them and obtain relief on the opposite basis.... Indeed, defendants may have a windfall. However, [the failure to disclose] is an unacceptable abuse of judicial proceedings.” Id.; see also Burnes, 291 F.3d at 1286 (explaining that because judicial estoppel is designed to protect the judicial process rather than litigants, a party’s detrimental reliance on a debtor’s inconsistent position is unnecessary) (citing cases). Yet another example is the Fifth Circuit’s decision in Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir.2005). In that case, the court rejected the debtor’s argument that her failure to inform the bankruptcy court of her discrimination claims was inadvertent because her- bankruptcy attorney told her such claims were “irrelevant.” Id. at 601. The court explained that to establish inadvertence, the debtor had to prove “either that she did not know of the inconsistent position or that she had no motive to conceal it from the court.” Id. at 600-01. The court opined that “[j]udicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based on that undisclosed asset.” Id. at 600; accord Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9th Cir.2001) (“In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.”) (citing cases). 2. Given the overwhelming weight of authority, the district court’s decision to employ judicial estoppel against Gardner under the circumstances presented is undoubtedly sound. The sole circuit court case on which Gardner relies to any extent is not to the contrary. In Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894 (6th Cir.2004), the" }, { "docid": "16334913", "title": "", "text": "enough to justify asserting that such an omission was the “position” of the party in the previous proceeding. Browning, 283 F.3d at 775. In Browning, we looked to our sister circuits, including the Third Circuit’s Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988), for guidance. Id. There, the Third Circuit held, and Defendant in the instant action would agree, that the debt- or’s post-petition bankruptcy claim against a bank was precluded by judicial estoppel because the debtor failed to disclose the claim in the prior bankruptcy proceeding. Id. at 419. This Court also looked to Oneida in our analysis in Reynolds v. Comm’r of Internal Revenue, 861 F.2d 469, 474 (6th Cir.1988), where we agreed that “statements of omissions by a debtor in a disclosure statement [are] sufficient for a finding of judicial estoppel.” Nevertheless, in Browning we found the very limiting language in Reynolds, which would allow an “omission” by a debtor to support a finding of judicial estoppel, to be merely dicta and, therefore, not binding. 283 F.3d at 775. Before Browning, this Court had not dealt with the issue of whether bad faith or an attempt to mislead the court was necessary to apply the doctrine of judicial estoppel; however, our sister circuits have held the application of judicial estoppel to be inappropriate when such omissions are the result of mere mistakes or inadvertent conduct. Id. (citing United States v. Hussein, 178 F.3d 125, 130 (2d Cir.1999); King v. Herbert J. Thomas Mem’l Hosp., 159 F.3d 192, 196-97 (4th Cir.1998); Helfand v. Gerson, 105 F.3d 530, 536 (9th Cir.1997)); see also Ryan Operations v. Santiam-Midwest, 81 F.3d 355, 362 (3rd Cir.1996) (holding the application of judicial estoppel would be inappropriate because there was no evidence Plaintiff acted in bad faith). There is record evidence in the instant case that Plaintiffs made the court, and the Trustee, aware of the potential civil claim against Defendant before the bankruptcy action closed, although the claim was omitted from Plaintiffs’ bankruptcy schedule form. Plaintiffs’ counsel and the Trustee were in contact, with respect to the documentation" }, { "docid": "12652067", "title": "", "text": "Carrasca v. Pomeroy, 313 F.3d 828, 835 (3d Cir.2002) (holding that \"judicial estoppel can be imposed only if: '(1) the party to be estopped is asserting a position that is irreconcilably inconsistent with one he or she asserted in a prior proceeding; (2) the party changed his or her position in bad faith, i.e., in a culpable manner threatening to the court’s authority or integrity; and (3) the use of judicial estoppel is tailored to address the affront to the court’s authority or integrity’ (quoting Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 777-78 (3d Cir.2001))). . Different and very complicated issues arise when judicial estoppel is purported to apply to pure issues of law. See Note, Judicial Estoppel and Inconsistent Positions of Law Applied to Fact and Pure Law, 89 Cornell L.Rev. 191 (2003). . But see Johnson, 405 F.3d at 1069-70 (analyzing issue of inconsistency between state conviction and federal civil rights case under judicial estoppel, not Heck). . Of course, no relief from judicial estoppel usually is available to a party who has undermined the integrity of the judicial system by intentionally misrepresenting historic facts. ' Thore argues the converse: that the standard should be that he should not be held to his earlier statement until it is shown that he intentionally misled the earlier court, and there is no intentional misrepresentation at issue here. But, under Alternative System Concepts, a party is not automatically excused from judicial estoppel if the earlier statement was made in good faith. 374 F.3d at 35. .As to legal theories, the Federal Rules themselves permit pleading of inconsistent theories in a single action. See Fed.R.Civ.P. 8(e)(2). . Similarly, where a witness gives a clear and unambiguous answer, he may not defeat summary judgment with a contradictory affidavit unless he gives a satisfactory explanation of why the testimony has changed. Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994). . See Jaffe v. Accredited Sur. & Cas. Co., Inc., 294 F.3d 584, 595 n. 7 (4th Cir.2002) (holding that judicial estoppel does not apply when" } ]

[ { "docid": "22088061", "title": "", "text": "length of the defendant’s imprisonment after revocation of supervised release. See id. The district court properly considered Brown’s rehabilitative needs. The court stated: “the reason I have gone above the Chapter 7 guidelines is you have a substantial substance abuse problem that the Court feels there is no other way to address in the short-term [][a]nd to protect you and society, I am directing that the BOP attempt to give you the benefit of that program.” The court noted that Brown “seriously needed the comprehensive abuse [drug treatment program].” A longer prison term would probably enable Brown to obtain necessary drug rehabilitation without posing a danger to himself and society. See Jackson, 70 F.3d at 879. Chapter 7 Policy Statements Brown also contends that the district court failed to consider the policy statements of Chapter 7 of the Sentencing Guidelines. These statements provide imprisonment ranges that a sentencing court may follow upon revocation of supervised release. See Hofierka, 83 F.3d at 360 (citing U.S.S.G. Ch. 7, Pt. A, intro.). A sentencing court must consider the policy statements, but it is not bound by them because they are “merely advisory.” See id. at 361; United States v. Milano, 32 F.3d 1499, 1502-03 (11th Cir.1994); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992). It is clear from the record that the district court did consider the Chapter 7 imprisonment range but decided to exceed it. The court noted: “the statutory maximum that I can impose is a two year custody sentence in the Bureau of Prisons, although the [sic] Chapter 7 of the guidelines range is five to eleven months. You understand I have a lot of discretion here this morning?” The court told Brown that if the Bureau of Prisons could not designate him into an institution where the comprehensive substance abuse treatment program was available, the court would direct the Bureau of Prisons to amend Brown’s sentence “to reflect a sentence at the maximum of the Chapter 7 guidelines range of eleven months.” The two year term of imprisonment did not exceed the maximum prescribed by statute. See" } ]

[ { "docid": "1518021", "title": "", "text": "the Chapter 7 recommended sentencing range. Jones’ argument reveals a basic misunderstanding of the role the Chapter 7 policy statements fill. The introduction to Chapter 7 clearly reflects that the Sentencing Commission intended the Chapter 7 policy statements to be merely advisory. At the outset, the Commission faced a choice between promulgating guidelines or issuing advisory policy statements for the revocation of probation and supervised release.... [T]he Commission decided, for a variety of reasons, initially to issue policy statements.... [TJkis approach provided greater flexibility to both the Commission and the courts. Moreover, the Commission anticipates that, because of its greater flexibility, the policy statement option will provide better opportunities for evaluation by the courts and the Commission.... After an adequate period of evaluation, the Commission intends to promulgate revocation guidelines. U.S.S.G. Chapter 7, Part A 3(a) (Nov. 1991) (emphasis added); see also United States v. Oliver, 931 F.2d 463 (8th Cir.1991) (“There are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court’s option in such a situation”). Because the Chapter 7 policy statements are not binding, the court is not required to make the explicit, detailed findings required when it departs upward from a binding guideline. See United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) (when working with Chapter 7 policy statements, district court not required to justify decision to impose sentence outside of prescribed range by finding aggravating factor warranting upward departure under 18 U.S.C. § 3553(b)), cert. denied, — U.S. -, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); see also United States v. Graves, 914 F.2d 159, 160 (8th Cir.1990) (per curiam) (“there is no requirement that the district court make specific findings relating to each of the factors considered”). Rather, the court is only required to “consider[ ]” the policy statements. See 18 U.S.C. § 3583(e). In this case, the district court explicitly considered several of the factors listed in the statute, including the Chapter 7 policy statements. Because the court clearly considered the policy statements when determining Jones’ sentence, the court" }, { "docid": "22815303", "title": "", "text": "category VI for plain error because McKinney failed adequately to object on this basis below and thus did not preserve the issue. We disagree. McKinney’s announcement to the district court that he was originally sentenced in criminal history category III and his request to the district court to give all due consideration to the Chapter 7 Guidelines was sufficient to preserve the issue for appellate review. Therefore, the plain error standard does not apply. Ill McKinney argues that the district court used the incorrect criminal history category to calculate the advisory guideline range at his revocation sentencing. There are no applicable guidelines for sentencing after revocation of supervised release; instead, the sentencing guidelines include policy statements concerning the revocation of supervised release. See U.S.S.G. Ch. 7, Pt. B, introductory comment. Section 7B1.4(a), p.s., provides advisory imprisonment ranges for defendants whose terms of supervised release have been revoked. The sentencing ranges are based on both the defendant’s criminal history and the severity of the defendant’s supervised release violation. See § 7B1.4(a); § 7B1.1, p.s. The criminal history category under § 7B1.4(a) is defined as “the category applicable at the time the defendant was originally sentenced to a term of supervision.” The question in this case is whether the criminal history category “applicable” at the time of the defendant’s original sentence is the pre- or post-departure category, in a case where a district court originally departed from that criminal history category for the reasons stated in U.S.S.G., § 4A1.3 (Adequacy of Criminal History Category). Section § 7B1.4(a) does not elaborate on this issue. However, the commentary to § 7B1.4 is instructive. The commentary’s interpretation of the guidelines is generally authoritative. See United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007); Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). We apply ordinary rules of statutory construction when interpreting the commentary. Austin," }, { "docid": "22182009", "title": "", "text": "exceeding a Chapter 7 recommended sentencing range.. Because we hold that the Chapter 7 sentencing range is not binding on district courts and that it is within their discretion to exceed this range, it follows that exceeding this range does not constitute a “departure.” See United States v. Mathena, 23 F.3d 87, 93 n. 13 (5th Cir.1994) (“A sentence which diverges from advisory policy statements is not a departure such that a court has to provide notice or make specific findings normally associated with departures under § 3553(b).”); United States v. Davis, 53 F.3d 638, 642 n. 15 (4th Cir.1995) (“It is well established that ‘[a] sentence which diverges from advisory policy statements is not a departure.’”) (quoting Mathena, supra); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991) (‘When working with policy statements (as opposed to guidelines), the district court is not required ... to impose a sentence outside of the prescribed range ... by finding an aggravating factor that warrants an upward departure_”). Consequently, we hold that the sentencing court is not required to give notice of its intent to exceed the Chapter 7 sentencing range. ■ This conclusion follows directly from the nature of sentencing under Chapter 7. By statute, Congress has authorized maximum terms of supervised release which vary depending on the nature of the original felony. 18 U.S.C.A. § 3583(b). For example, the maximum term of supervised release for a Class A or B felony is five years and for a Class C or D felony is three years. Upon revocation of a term of supervised release, the court may require a defendant to serve in prison all or part of the term of supervised release authorized by statute without credit for time served on post-release supervision. 18 U.S.C.A. § 3583(e)(3). The court may not, however, impose a sentence upon revocation of greater than five years in prison where the original crime was á class A felony, three years where it was a class B felony, two years where it was a" }, { "docid": "9839876", "title": "", "text": "PER CURIAM. After Steve Brown admitted to violating the conditions of his supervised release, the district court revoked his supervised release and sentenced Brown to 24 months imprisonment. On appeal, Brown contends that the 1994 amendment to 18 U.S.C. § 3553(a)(4)(B) rendered the policy statements in Chapter 7 of the U.S. Sentencing Guidelines Manual regarding supervised release violations binding, rather than advisory, and, therefore, that the court erred by sentencing him above the range suggested by § 7B1.4(a). He also argues that the court abused its discretion by imposing a sentence above the 7-13 month revocation imprisonment range contained in U.S. Sentencing Guidelines Manual § 7B1.4(a), p.s. (1998). Brown first argues that the policy statements in Chapter 7 of the Guidelines are made binding by § 3553(a)(4)(B), as amended, which provides that the district court “shall consider ... the applicable guidelines or policy statements issued by the Sentencing Commission” when imposing a sentence upon revocation of supervised release. Because he did not present this argument below, we are limited to reviewing for plain error. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc), cert. denied, 519 U.S. 938, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996). To warrant reversal under this standard of review, an error must be “clear under current law.” Id. at 192. Brown has not directed our attention to any case law holding that the amendment to § 3553(a)(4)(B) rendered the Chapter 7 policy statements, which the Sentencing Commission itself says are advisory only, binding. Instead, he candidly acknowledges that this argument has been rejected by the circuits which have considered it. Moreover, this circuit has consistently held that the policy statements in Chapter 7 of the Guidelines regarding supervised release violations are advisory to, rather than binding on, the district- court. See United States v. Shaw, 180 F.3d 920, 922 (8th Cir.1999); United States v. Carlton Bernard Brown, 198 F.3d 713 (8th Cir.1999). Finally, as a textual matter, the statute itself does not clearly say that the Chapter 7 policy statements are to be binding on a district court. The mandatory “shall impose" }, { "docid": "22858594", "title": "", "text": "be stated with specificity in the written order of judgment and commitment .... Our Circuit has squarely held that the written-order requirement ■ of § 3553(c)(2) does not apply when the court revokes supervised release and imposes a sentence different from the term recommended by U.S.S.G. § 7B1.4. United States v. White Face, 383 F.3d 733, 738-39 (8th Cir.2004) (Murphy, J.). We reasoned that the written-order requirement applies to departures from the guidelines range, whereas revocation of supervised release is not governed by guidelines, but only policy statements which are not binding on the court (although the court must consider them). Id. “[A] revocation sentence exceeding the suggested range in the policy statements of Chapter 7 has not been considered to be an upward departure from the guidelines.” Id. at 738. We must reject Cotton’s first argument. Cotton also argues that the sentence she received was unreasonable. In White Face we stated: When there is no applicable sentencing guideline, as in the case of a revocation ‘ sentence, we review to determine whether the sentence was plainly unreasonable. See 18 U.S.C. § 3742(e)(4). A district court’s decision to sentence a defendant to a longer term than suggested by Chapter 7 is reviewed for abuse of discretion. 383 F.3d at 737. Under 18 U.S.C.A. § 3583(e), the district court must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including the statutory goals of deterrence, incapacitation, and rehabilitation, §§ 3553(a)(2)(B), (C) & (D); the pertinent circumstances of the individual case, § 3553(a)(1); applicable policy statements, §§ 3553(a)(4) & (5); sentencing uniformity, § 3553(a)(6); and restitution, § 3553(a)(7). See White Face, 383 F.3d at 740. The Supreme Court has just handed down its opinion in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which vitally affects the standard of review in guidelines cases. Justice Breyer, writing for the court, excised 18 U.S.C.A. § 3742(e) (2004 Supp.) and prescribed a new standard of review for guidelines cases generally. — U.S. at - - -, 125 S.Ct. at 764-69. However, the new standard of" }, { "docid": "22597542", "title": "", "text": "four months. Garcia received an additional sentence of 21 months’ imprisonment from another judge of the District Court for the Southern District of California, to run consecutively with Garcia’s state sentence. At his probation revocation hearing on December 14, 2001, Garcia admitted to the armed robbery allegation, a Grade A probation violation pursuant to U.S.S.G. § 7Bl.l(a)(l). After considering the nature and circumstances of Garcia’s violations, as- well as Garcia’s criminal history and other circumstances, the district court determined that an upward departure was appropriate under 18 U.S.C. § 3565(a)(2) and U.S.S.G. § 7B1.4. ANALYSIS I. Notice of Upward Departure from Chapter 7 Policy Statements While the district court’s application of the Sentencing Guidelines is reviewed de novo, its consideration of nonbinding policy statements is reviewed for an abuse of discretion. United States v. George, 184 F.3d 1119, 1120 (9th Cir.1999). Garcia argues that his sentence should be vacated on the basis that the district court departed upward from the Sentencing Guidelines’ policy statements without providing Garcia with reasonable notice. Garcia cites Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), for the well-settled proposition that Federal Rule of Criminal Procedure 32 requires a sentencing court to provide a defendant with reasonable notice before sua sponte departing upward from a guideline sentencing range “on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government.” Id. at 137-38, 111 S.Ct. at 2187-88. This notice requirement is intended to promote “focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences.” Id. at 137, 111 S.Ct. at 2187. Garcia, however, was sentenced under Chapter 7 of the Sentencing Guidelines. The sentencing ranges set forth in Chapter 7 are merely advisory and are not binding upon the sentencing judge. George, 184 F.3d at 1121. So long as a district court considers the policy statements of Chapter 7, “it is free to reject the suggested sentencing range and ... impose a sentence that is below the statutory maximum.” United States v. Tadeo, 222" }, { "docid": "22597543", "title": "", "text": "States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), for the well-settled proposition that Federal Rule of Criminal Procedure 32 requires a sentencing court to provide a defendant with reasonable notice before sua sponte departing upward from a guideline sentencing range “on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government.” Id. at 137-38, 111 S.Ct. at 2187-88. This notice requirement is intended to promote “focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences.” Id. at 137, 111 S.Ct. at 2187. Garcia, however, was sentenced under Chapter 7 of the Sentencing Guidelines. The sentencing ranges set forth in Chapter 7 are merely advisory and are not binding upon the sentencing judge. George, 184 F.3d at 1121. So long as a district court considers the policy statements of Chapter 7, “it is free to reject the suggested sentencing range and ... impose a sentence that is below the statutory maximum.” United States v. Tadeo, 222 F.3d 623, 625 (9th Cir.2000). This Court has never previously decided whether a sentencing court must provide notice before departing upward from a Chapter 7 recommended sentencing range. We now hold that such notice is not required. Inasmuch as Chapter 7 policy statements are not binding on sentencing courts and it is within the courts’ discretion to exceed this sentencing range, a sentence in excess of this range is not a “departure” from a binding guideline. See United States v. Burdex, 100 F.3d 882, 885 (10th Cir.1996). Every other circuit to consider this issue has reached the same conclusion. See id.; United States v. Shaw, 180 F.3d 920, 922-23 (8th Cir.1999) (per curiam); United States v. Pelensky, 129 F.3d 63, 70-71 (2d Cir.1997); United States v. Hofierka, 83 F.3d 357, 362 (11th Cir.1996) (per curiam); United States v. Mathena, 23 F.3d 87, 93 n. 13 (5th Cir.1994). Today’s decision is the logical extension of this Court’s previous holding in George that Chapter 7 policy statements are not binding on sentencing courts. Probation revocations are governed" }, { "docid": "22338851", "title": "", "text": "a crime, when he pleaded guilty to a drunk driving charge in Iowa state court. The district court imposed a revocation sentence of 60 months of imprisonment. Larison appeals. Larison argues that his sentence is excessive and unwarranted. Specifically, he first asserts that the district court failed to consider the five to eleven months sentencing range recommended by the policy statements found in Chapter 7 of the Sentencing Guidelines. We have long recognized the purely advisory nature of the Chapter 7 policy statements related to the revocation of supervised release, see United States v. Jones, 973 F.2d 605, 607 (8th Cir.1992), and after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review revocation sentences for unreasonableness, see United States v. Tyson, 413 F.3d 824, 825 (8th Cir.2005). Despite Larison’s arguments to the contrary, the sentencing transcript indicates that the district court imposed the sentence “after having consulted the [Guidelines.” (Sent. Tr. at 21.) The district court also noted that Larison had received a substantial departure at his original sentencing as a reward for his substantial assistance. See U.S. Sentencing Guidelines Manual § 7B1.4, comment. (n.4) (2004) (noting that an increased sentence above the recommended revocation range may be warranted where the original sentence resulted from a downward departure as a reward for substantial assistance). Furthermore, even Larison’s attorney did not recommend a sentence within the policy statements’ recommended range of five to eleven months. His attorney stated that a sentence of 24 months would be appropriate. We conclude that the district court did consider “the applicable guidelines or policy statements issued by the Sentencing Commission,” as required by statute in imposing a sentence for violation of supervised release. 18 U.S.C. § 3553(a)(4)(B). Larison argues that the district court gave significant weight to improper and irrelevant factors. When imposing a sentence for the violation of a term of supervised release, the district court considers the factors listed in 18 U.S.C. § 3553(a). United States v. White Face, 383 F.3d 733, 737 (8th Cir.2004). “A district court need not mechanically list every § 3553(a) consideration" }, { "docid": "22182006", "title": "", "text": "a defendant’s supervised release, must at least consider the sentencing range prescribed by the Sentencing Commission’s policy statements. The heading and text of subsection (b) make clear that its mandatory language refers only to those situations in which sentences are imposed pursuant to guidelines. Because the Chapter 7 sentencing range is a mere policy statement and not a guideline (in the sense of binding courts), the language in subsection (b) does not apply to sentencing under Chapter '7: Indeed, the interpretation pressed by appellants would not make practical sense. The Sentencing Commission specifically stated in Chapter 7 that it issued advisory policy statements rather than guidelines for sentences imposed upon the revocation of supervised release in order to provide district courts with greater flexibility. Milano, 32 F.3d at 1503 (citing U.S.S.G. Ch. 7, Pt. A(3)(a)). It is against this backdrop that Congress amended § 3553. Congress understood that courts have consistently distinguished guidelines, from mere policy statements and nothing in the statute persuades us that it intended to change the meaning of these words. Accordingly, consistent with Milano, Thompson, and the reasoning set forth above, “we hold that, while the district court in this case was required to consider the Chapter 7 policy statements in determining [appellants’] sentence, the Court was not bound to apply the sentence set forth in section 7B1.4.” Milano, 32 F.3d at 1503. Hofierka and Andrews alternatively argue that, even if the Chapter 7 sentencing range is not binding, the district court failed to consider this range before imposing the sentences. In Milano, we held that sentencing courts must consider the policy statements in Chapter 7 before imposing a sentence, although they are not bound to follow these statements. 32 F.3d at 1503. We review the district court’s decision to exceed the Chapter 7 sentencing range for an abuse of discre- tiori. See United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992). As to both appellants, the record amply reveals that the district court adequately considered the Chapter 7 sentencing range. In both cases, the district court explicitly mentioned the Chapter 7 range and chose" }, { "docid": "1518020", "title": "", "text": "U.S.C. § 3583(e) (1988). One of the factors to which the statute refers is “any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced.” 18 U.S.C. § 3553(a)(5) (1988). Under the United States Sentencing Guidelines (U.S.S.G.) Chapter 7 policy statements, the recommended sentence in Jones’ case would be twelve to eighteen months. U.S.S.G. § 7B1.4(a), p.s. (Nov. 1, 1990). Jones’ first argument is that because the district court is required to “eonsider[ ]” the Chapter 7 policy statements in its sentencing decision upon revocation of supervised release, see 18 U.S.C. § 3583(e), the court must treat the policy statements as if they were binding guidelines. When a court departs upward from a guidelines sentencing range, it is required to specifically explain the reasons for the upward departure. United States v. Crumb, 902 F.2d 1337 (8th Cir.1990); see also 18 U.S.C. § 3553(b). Jones contends that the district court erred in failing to adequately give reasons for its “upward departure” from the Chapter 7 recommended sentencing range. Jones’ argument reveals a basic misunderstanding of the role the Chapter 7 policy statements fill. The introduction to Chapter 7 clearly reflects that the Sentencing Commission intended the Chapter 7 policy statements to be merely advisory. At the outset, the Commission faced a choice between promulgating guidelines or issuing advisory policy statements for the revocation of probation and supervised release.... [T]he Commission decided, for a variety of reasons, initially to issue policy statements.... [TJkis approach provided greater flexibility to both the Commission and the courts. Moreover, the Commission anticipates that, because of its greater flexibility, the policy statement option will provide better opportunities for evaluation by the courts and the Commission.... After an adequate period of evaluation, the Commission intends to promulgate revocation guidelines. U.S.S.G. Chapter 7, Part A 3(a) (Nov. 1991) (emphasis added); see also United States v. Oliver, 931 F.2d 463 (8th Cir.1991) (“There are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court’s" }, { "docid": "22081752", "title": "", "text": "MURPHY, Circuit Judge. Appellants violated the conditions of their supervised release and each was sentenced after revocation to a longer period than recommended in Chapter 7 of the United States Sentencing Guidelines Manual. They appeal and seek resentencing, contending that the district courts departed from the guidelines without notice and written statement of reasons. We affirm. In 1990 the Sentencing Commission adopted policy statements in Chapter 7 which suggest penalties for violations of supervised release. See United States Sentencing Guidelines [U.S.S.G.] ch. 7, pt. B, introductory cmt. The Sentencing Commission explained that it chose to issue advisory policy statements for the revocation of supervised release because they provide the district court with “greater flexibility” than a guideline. U.S.S.G. ch. 7, pt. A, § 3(a); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993). Although it indicated it would in the future issue guidelines for the revocation of supervised release, see U.S.S.G. ch.7, pt. A, § 3(a), it has not yet done so. Appellants contend that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), Pub.L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003) (codified in scattered sections of 18, 28, and 42 U.S.C.), added new requirements for revocation sentencing and that the district courts departed from the sentencing guidelines by not sentencing within the Chapter 7 range and did so without notice and written reasons. They also argue that the district court failed to consider the statutory sentencing factors in 18 U.S.C. § 3553(a). They request remand with instructions to sentence within the Chapter 7 range or to give notice of intent to depart from that range and provide written reasons. The government counters that the Chapter 7 policy statements are not binding, that the district court was not required to give written reasons for a revocation sentence, and that the district court adequately considered the § 3553(a) factors. In each case before the district court the defendant admitted that he had violated conditions of supervised release. Supervised release was revoked for each after the PROTECT Act went into effect, and each" }, { "docid": "22402793", "title": "", "text": "Commission. 18 U.S.C. § 3553(a)(1), (2)(B), (4)(B). The sentencing court “shall state in open court the reasons for its imposition of a particular sentence, and if the sentence ... is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for imposition of a sentence different from that described.” 18 U.S.C. § 3553(c)(2). Chapter 7 of the Sentencing Guidelines governs violations of probation and contains policy statements, one of which provides recommended ranges of imprisonment applicable upon revocation. U.S.S.G. § 7B1.4, p.s. We have consistently held that the policy statements of Chapter 7 are merely advisory and not binding. Aguillard, 217 F.3d at 1320. While the district court is required to consider the policy statements, it is not bound by them. United States v. Brown, 224 F.3d 1237, 1242 (11th Cir.2000). When exceeding the recommended range, the court must normally indicate that it considered the Chapter 7 policy statements. Aguillard, 217 F.3d at 1320. The district court did not abuse its discretion in imposing a 24-month sentence on Silva. First, the 3 to 9 month range in Chapter 7 was not binding on the court. Second, the district court appropriately considered the range when it noted that a sentence above the guidelines range was necessary to respond to Silva’s numerous probation violations. The district court thus stated its reasons for imposing a sentence outside the range as it was obligated to do under § 3553(c)(2). Furthermore, the record supports the district court’s finding. Silva’s original offense of aggravated sexual abuse was a violent and serious one, carrying with it, if he had been convicted as an adult, a maximum term of life imprisonment. He had also previously violated his probation on several occasions and had been treated leniently. As such, the district court did not abuse its discretion in exceeding the recommended Chapter 7 guidelines range. Based on the foregoing, we affirm the sentence. AFFIRMED. . 18 U.S.C. § 5037 was amended effective November 2, 2002, and now explicitly states that the age at re-sentencing controls for purposes of imposing a term of detention" }, { "docid": "22045643", "title": "", "text": "release. Tadeo has timely appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(3). II Tadeo asserts that the district court abused its discretion by “upwardly departing from the sentencing guidelines.” The Government argues that the policy statements set forth in Chapter 7 of the U.S. Sentencing Guidelines Manual are not binding on a district court in sentencing a defendant after revoking his or her term of supervised release. Tadeo responds that the district court ignored its duty to consider the sentencing ranges set forth in U.S.S.G. § 7B1.4(a), and that it misapplied U.S.S.G. § 7B1.4, Application Note 3. In United States v. George, 184 F.3d 1119 (9th Cir.1999), we held that the sentencing ranges set forth in Chapter 7 are merely advisory, and that they are not binding on a district court in calculating the sentence that should be imposed upon revoking a term of supervised release. Id. at 1122. “[T]he policy statements set forth in Chapter 7 are neither guidelines nor interpretations or explanations of guidelines.” Id. at 1121. We review a district court’s consideration of the non-binding policy statements set forth in Chapter 7 for abuse of discretion. See id. at 1120. A district court abuses its discretion if it fails to consider these policy statements. See id. at 1122. If a district court considers the policy statements of Chapter 7, it is free to reject the suggested sentencing range and may revoke a defendant’s supervised release and impose a sentence that is below the statutory maximum. See id. at 1122-23 (citing United States v. Forrester, 19 F.3d 482, 485 (9th Cir.1994)). The record shows that the district court considered the suggested sentencing range contained in § 7B1.4(a). At the disposi-tional hearing on the petition to revoke the term of supervised release, the district court stated: As the dispositional report reflects, a Grade C violation committed by some one with a criminal history of six results in a policy statement range of 8 to 14 months imprisonment. The statutory maximum that you would face for these violations is 24 months imprisonment. There is a cap under the" }, { "docid": "22045642", "title": "", "text": "of 8 to 14 months set forth in U.S.S.G. § 7B1.4(a) because Tadeo has AIDS and suffers from serious depression and psychotic symptoms, including hallucinations. The Government asked the court to revoke Tadeo’s term of supervised release and to impose an upward departure from the policy statement range of 8 to 14 months. In support of its recommendation, the Government cited the danger posed by Tadeo’s use of narcotics while on supervised release and the risk that he will commit other crimes including sexual offenses. The district court ordered that Tadeo’s term of supervised release be revoked based on his admission of facts that constituted a Grade C violation of the conditions of supervised release. The district court noted that Tadeo had committed a number of criminal offenses, including a violent and bizarre rape, while under the influence of drugs. For that reason, the district court concluded that an upward departure from the policy statement range of 8 to 14 months was warranted because of Tadeo’s return to the use of drugs while on supervised release. Tadeo has timely appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(3). II Tadeo asserts that the district court abused its discretion by “upwardly departing from the sentencing guidelines.” The Government argues that the policy statements set forth in Chapter 7 of the U.S. Sentencing Guidelines Manual are not binding on a district court in sentencing a defendant after revoking his or her term of supervised release. Tadeo responds that the district court ignored its duty to consider the sentencing ranges set forth in U.S.S.G. § 7B1.4(a), and that it misapplied U.S.S.G. § 7B1.4, Application Note 3. In United States v. George, 184 F.3d 1119 (9th Cir.1999), we held that the sentencing ranges set forth in Chapter 7 are merely advisory, and that they are not binding on a district court in calculating the sentence that should be imposed upon revoking a term of supervised release. Id. at 1122. “[T]he policy statements set forth in Chapter 7 are neither guidelines nor interpretations or explanations of guidelines.” Id. at 1121. We review a district" }, { "docid": "23301661", "title": "", "text": "require an upward departure, which he asserts is unwarranted. Indeed, the district court in sentencing Denard to fifteen months stated that it was departing upward pursuant to application note 4 of § 7B1.4 of the Sentencing Guidelines, which states: “[w]here the original sentence was the result of a downward departure ... an upward departure may be warranted.” The Supreme Court in Granderson resolved the ambiguity with regard to both the minimum and the maximum revocation sentence when applying § 3565(a). The Court held that the minimum revocation sentence is one-third of the maximum sentence originally applicable under the Guidelines, and the maximum revocation sentence is the Guidelines maximum, which in Denard’s case is twenty-one months. Granderson, at -, 114 S.Ct. at 1268-69. Therefore, the district court does not need to depart upward to sentence Denard to incarceration of up to twenty-one months. Although this rule may produce results inconsistent with the probation revocation tables in § 7B1.4, the tables in Chapter 7 are policy statements, which are not binding on the courts. See United States Sentencing Commission, Guidelines Manual, Ch. 7, Pt. A(l), intro, comment. (Nov.1993) (indicating that the policy statements of Chapter 7 are intended to provide guidance to the district courts); see also United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) (policy statements of Chapter 7 are merely advisory and are not binding on the district courts), cert. denied, - U.S. -, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). Thus, district courts are free to consider the suggested ranges in the probation revocation tables, but are not bound to impose a sentence within that range. III. Accordingly, we vacate the judgment of the district court and remand the case for resentencing consistent with this opinion. VACATED AND REMANDED. We limit our discussion to the policy statements contained in Chapter 7, realizing that in some contexts, policy statements are binding on the district courts. See, e.g., Williams v. United States,-U.S.-,-, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (\"[w]here ... a policy statement prohibits a district court from taking a specified action, the statement is an authoritative" }, { "docid": "1518019", "title": "", "text": "to sell some of it. He claimed, however, that he no longer had the cocaine because he had flushed it down the toilet. Harris replied that he did not believe that Jones had flushed the remaining cocaine. Jones then gave Harris a package containing five ounces (140 grams) of cocaine and indicated that he desired treatment for his addiction. Jones was arrested on November 26 for violating the terms of his supervised release. The district court held a revocation hearing on December 20. At the hearing, Jones admitted that he had possessed and used cocaine and that he had told his probation officer that he intended to distribute some of the cocaine. The district court revoked Jones’ supervised release and sentenced him to two years’ imprisonment pursuant to 18 U.S.C. § 3583(e)(3) (1988). Jones now appeals his sentence. II. The statute governing the revocation of supervised release requires the court to “consider[]” certain factors listed in 18 U.S.C. § 3553(a) when determining what sentence to impose when revoking a term of supervised release. See 18 U.S.C. § 3583(e) (1988). One of the factors to which the statute refers is “any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced.” 18 U.S.C. § 3553(a)(5) (1988). Under the United States Sentencing Guidelines (U.S.S.G.) Chapter 7 policy statements, the recommended sentence in Jones’ case would be twelve to eighteen months. U.S.S.G. § 7B1.4(a), p.s. (Nov. 1, 1990). Jones’ first argument is that because the district court is required to “eonsider[ ]” the Chapter 7 policy statements in its sentencing decision upon revocation of supervised release, see 18 U.S.C. § 3583(e), the court must treat the policy statements as if they were binding guidelines. When a court departs upward from a guidelines sentencing range, it is required to specifically explain the reasons for the upward departure. United States v. Crumb, 902 F.2d 1337 (8th Cir.1990); see also 18 U.S.C. § 3553(b). Jones contends that the district court erred in failing to adequately give reasons for its “upward departure” from" }, { "docid": "22402792", "title": "", "text": "detention under § 5037(c). Thus, the district court did not err. II. Silva also argues that the district court abused its discretion in imposing a sentence above the recommended Chapter 7 guidelines range, U.S.S.G. § 7B1.4. We review a district court’s decision to exceed the Chapter 7 recommended guidelines range for an abuse of discretion. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). The version of § 5037(b) at issue indicates that § 3565, governing revocation of probation, applies to juvenile probation orders. Under that statute, a district court, upon finding that a defendant violated probation, may revoke the term of probation and impose a term of imprisonment after considering the factors set out in 18 U.S.C. § 3553(a). 18 U.S.C. § 3565(a). Relevant factors include the nature and eircum- stances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the kinds of sentences and sentencing ranges established under the applicable guidelines, and policy statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1), (2)(B), (4)(B). The sentencing court “shall state in open court the reasons for its imposition of a particular sentence, and if the sentence ... is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for imposition of a sentence different from that described.” 18 U.S.C. § 3553(c)(2). Chapter 7 of the Sentencing Guidelines governs violations of probation and contains policy statements, one of which provides recommended ranges of imprisonment applicable upon revocation. U.S.S.G. § 7B1.4, p.s. We have consistently held that the policy statements of Chapter 7 are merely advisory and not binding. Aguillard, 217 F.3d at 1320. While the district court is required to consider the policy statements, it is not bound by them. United States v. Brown, 224 F.3d 1237, 1242 (11th Cir.2000). When exceeding the recommended range, the court must normally indicate that it considered the Chapter 7 policy statements. Aguillard, 217 F.3d at 1320. The district court did not abuse its discretion in imposing a 24-month sentence on Silva." }, { "docid": "22081760", "title": "", "text": "the offense, deter criminal conduct, protect the public, and provide the defendant with educational or vocational training, medical care, or other treatment; the applicable category of offense and category of defendant in the guidelines or policy statements issued by the Sentencing Commission; any pertinent policy statement issued by the Sentencing Commission; avoidance of unwarranted disparities among similar defendants; and victim restitution. See 18 U.S.C. §§ 3553(a)(1)-(7). We have required that courts consider the policy statements in Chapter 7 when sentencing a violator of supervised release and have concluded that the suggested ranges in U.S.S.G. § 7B1.4(a) are only advisory. See United States v. Hensley, 36 F.3d 39, 42 (8th Cir.1994). There are “no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court’s options in such a situation.” United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). No circuit court has considered the Chapter 7 policy statements binding on district courts, and we have distinguished these policy statements from the federal sentencing guidelines which are “‘regulation^] with the force of law.’” See Levi, 2 F.3d at 845. Thus, a revocation sentence exceeding the suggested range in the policy statements of Chapter 7 has not been considered to be an upward departure from the guidelines. United States v. Shaw, 180 F.3d 920, 922 (8th Cir.1999) (per curiam). Our court has maintained this approach to the suggested ranges in Chapter 7 after the PROTECT Act became law. We held in Martin, 371 F.3d at 449, that Chapter 7 policy statements remain nonbinding on the district court, that a revocation sentence outside the recommended Chapter 7 range is not a departure because there is no binding guideline from which to depart, and that revocation sentences are reviewed for an abuse of discretion. Accord United States v. Marrow Bone, 378 F.3d 806, 2004 WL 1770804, at *2-3 (8th Cir. Aug.9, 2004). Since the Chapter 7 policy statements are not binding and revocation sentences outside their ranges are not departures, appellants were not entitled to prior notice that the district court was contemplating" }, { "docid": "13650609", "title": "", "text": "United States Sentencing Commission must be considered by the trial sentencing court in imposing punishment for violation of the terms and conditions of supervised release. See 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be imposed, shall consider ... any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2)) (emphasis added). However, while the district court must consider the policy statements, the court is not bound by them. See United States of America v. Blackston, 940 F.2d 877 (3rd Cir.1991) (The court determined that a district court had properly sentenced a defendant to three years imprisonment, although the policy statement in Chapter 7 recommended a four to seven month range. The court held that policy statements are merely advisory and, unlike guidelines, are not binding on the courts). In this case, the district court appropriately considered and rejected the recommended range contained in Chapter 7 of the U.S.S.G. In Lee, we observed: While ‘there is no requirement that the district court make specific findings relating to each of the factors considered,’ United States v. Graves, 914 F.2d 159, 160 (8th Cir.1990), the sentencing court should state its reasons for its action. See 18 U.S.C. § 3553(c). United States of America v. Lee, 957 F.2d at 774. The district court clearly demonstrated its awareness of the U.S.S.G. § 7B1.1 policy statements and, having demonstrated that awareness, requested counsel to brief the law on an upward departure from the range of sentences noted in the policy statements. After briefing, the court quite clearly stated its reasons for imposing the two-year sentence. The district court amply observed all the requirements of Lee. The district court s sentence was reasoned and reasonable. The trial judge solicited briefing on his intention to depart upward from the U.S.S.G. policy statements and made a considered determination that, given the defendant’s prior conduct, such departure was warranted. The basis for upward departure included repeated violations of the terms of supervised release after the district court had given defendant opportunity to alter his behavior and had deferred revocation of supervised release." }, { "docid": "23383505", "title": "", "text": "from advisory policy statements is not a departure such that a court has to provide notice,” id. at 93 n. 13. See also Hofierka, 83 F.3d at 362 (11th Cir.) (“[Exceeding [the Chapter 7] range does not constitute a ‘departure.’ Consequently, we hold that the sentencing court is not required to give notice of its intent to exceed the Chapter 7 sentencing range.”) (citations omitted); United States v. Davis, 53 F.3d 638, 642 n. 15 (4th Cir.1995) (“It is well established that ‘[a] sentence which diverges from advisory policy statements is not a departure.’ ”) (quoting Mathena, 23 F.3d at 93 n. 13); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) (‘When working with policy statements (as opposed to guidelines), the district court is not required ... to impose a sentence outside of the prescribed range ... by finding an aggravating factor that warrants an upward departure-”), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). We now adopt the well-accepted position of the Fifth Circuit that a sentencing court is not required to give notice of its intent to exceed the sentencing range prescribed by the Chapter 7 policy statements for violations of supervised release. This conclusion follows directly from our holding in Hurst that the Chapter 7 policy statements are not binding on sentencing courts. A sentence in excess of the Chapter 7 range is not a “departure” from a binding guideline. Rather, only the statutory maximum imposed by Congress binds a sentencing court as to the length of a sentence imposed upon a violation of supervised release. All discussions of applicable -sentences before a district court following the revocation of supervised release “should be grounded in the common understanding that the district court may impose any sentence within the statutory maximum.” Hofierka, 83 F.3d at 362. Thus, we find no error with the sentencing court’s failure to give Mr. Burdex prior notice of its intention to depart from the Chapter 7 policy statements. C. Application of 18 U.S.C. § 8558 Mr. Burdex next submits that the sentencing court failed to adequately consider" } ]

[ { "docid": "1679702", "title": "", "text": "with the Supreme Court’s decision in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), in which the Court spoke directly to the issue of whether the Constitution guarantees a criminal defendant the right to be present during a jury view of a crime scene. In that case, the Court held that the Constitution guarantees no such right. The Court reasoned that “the presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 54 S.Ct. at 333. The Court made clear that the presence of the defendant at a jury view is not among those constitutional privileges “conferred so explicitly as to leave no room for an inquiry whether prejudice to a defendant has been wrought through their denial.” Id. at 116, 54 S.Ct. at 336. The lesson of Snyder is that, if in any given case the exclusion of the defendant from a jury view is found to be a deprivation of due process, it is not because the Constitution guarantees the defendant an absolute right to be present; it is only because his absence, under the particular circumstances of his case, can be said to have denied him a fair proceeding. Because it is the law as determined by the Supreme Court which prevails on habeas review, Snyder is controlling in this case absent Supreme Court precedent to the contrary. The only Supreme Court decisions relied upon by the petitioner are cases holding that an accused has a right to be present at all stages of trial. See Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975); Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970). Petitioner argues that, because “most authorities agree that the jury view is an important part of the trial which provides independent evidence,” the Constitution,guarantees a right to be present at a jury view. The Court explicitly rejected this argument" } ]

[ { "docid": "13807096", "title": "", "text": "dire interviews with 19 jurors outside of his presence. The OCCA and the district court rejected this claim, and the district court concluded that a COA was not warranted. We deny Mr. Lock-ett’s motion for a COA on this ground. 1. Legal Background A defendant has a due process right to be present during critical stages of trial, which may include the voir dire process. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). The right to be present during voir dire is not absolute, however. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court noted that the Fourteenth Amendment did not grant “the privilege of presence when presence would be useless, or the benefit but a shadow.” Id. at 106-07, 84 S.Ct. 1489. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 84 S.Ct. 1489. In other words, the right to be present is limited to circumstances where a defendant’s “presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Id. at 105-06, 84 S.Ct. 1489. In Bland, this court considered Snyder in a habeas appeal involving exclusion from voir dire. 459 F.3d at 1020. The defendant in Bland was absent from individual voir dire discussions involving 32 jurors. We noted that Mr. Bland had been present for the majority of voir dire proceedings and had sufficient opportunity to observe the jurors and participate in peremptory challenge decisions. Id. at 1021. We therefore determined that his presence during the specific portions of voir dire would have been “a mere shadow.” Id. (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. 330). 2. Procedural Background The initial jury voir dire process for Mr. Lockett’s trial lasted four days. Mr. Lock-ett was present for all" }, { "docid": "23344978", "title": "", "text": "other decisions in cross-examining, objecting and the like. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). But any defendant, if he is found guilty, should, as a matter of fundamental fairness and as part of the rehabilitative process, have the assurance, by reason of his direct observation, that justice was done. There could hardly be anything more rankling to a defendant and destructive of his morale and incentive to reform than to have the nagging suspicion that something was presented to the Court which should not have been. This factor, among others places in doubt the validity of Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), in which the Court approved the taking of a view without the defendant being present. To justify the procedure utilized in this case against the enormous weight of constitutional strictures, precedent and good sense presents serious difficulties. Nevertheless, there is some support by analogy for the procedure adopted. Limited in camera investigations in the pre-trial discovery stages are suggestive of a limited power to keep information from defendant. See A.B.A. Minimum Standards for Criminal Justice Relating to Discovery and Procedure Before Trial §§ 2.5, 2.6, 4.4, 4.6 (Tent. Draft May 1969); Fed.R.Crim.P. 16(e); Preliminary Draft of Proposed Amendment of Federal Rules of Criminal Procedure for the United States District Court, Rule 16(d) (e) (1970). Disclosure must be had if a failure will “infringe the constitutional rights of the accused” or if it is “regarding witnesses or material to be produced at a hearing or trial.” A.B.A., Minimum Standards for Criminal Justice Relating to Discovery and Procedure Before Trial § 2.6(b) (c) (Tent. Draft May 1969). Even the state secret privilege may not be utilized in a way that will deny a defendant constitutional rights. The" }, { "docid": "7507610", "title": "", "text": "but to all critical stages of the proceedings. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). When determining whether a constitutional violation occurred, I must also consider whether the defendant’s exclusion from the hearing interfered with his ability to cross-examine effectively. Id. at 740, 107 S.Ct. 2658. Bell asserts that his counsel were sufficiently ineffective to meet the “cause” prong required by Coleman. The Supreme Court of Virginia on habeas review, however, determined that Bell’s counsel were not ineffective under either the performance or the prejudice prong of Strickland. Under § 2254, I may only grant relief on this claim if Bell shows that the state court unreasonably applied or acted contrary to existing federal law. Bell fails to do so. Here, after reviewing all of the alleged errors, I find that the proceedings from which Bell alleges his erroneous absence neither were critical stages of the trial nor interfered with his ability to cross-examine. I find also that Bell’s absence from any of the proceedings did not inhibit his opportunity to defend against the charge. See Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 17, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). No instance cited by Bell involved an out-of-court examination of a witness, nor a situation in which a witness could not be cross-examined again in open court in front of the jury. Most instances were related to evidence to be admitted at trial. Some evidence, like the testimony of an additional DNA expert, was favorable to Bell’s position and was allowed by the judge. In the case of evidence not favorable to Bell, Bell was presented with the opportunity, in open court, to object to the admission of such testimony and to cross-examine any opposing witnesses. Other conferences related to insignificant aspects of trial, like alerting the trial court to the upcoming introduction of evidence and resolving a question regarding the proper numbering of an exhibit. (V J.A. at 2051-52.) I also" }, { "docid": "16417453", "title": "", "text": "of a defendant at the trial of his indictment stems from due process or statute, literal application of its directive is not demanded. Common sense dictates that substantial performance of its terms is sufficient.” Mullen, 44 N.Y.2d at 5-6, 403 N.Y.S.2d 470, 374 N.E.2d 369 (holding that in camera questioning of one juror out of defendant’s presence did not constitute material stage of trial). This flexible “modern” view is the result of a gradual dilution of the unequivocal common-law position that the right was absolute and could not be waived. See People v. Epps, 37 N.Y.2d 343, 349, 372 N.Y.S.2d 606, 334 N.E.2d 566 (1975) (recounting the history of New York constitutional and statutory guarantees of right to be present and compiling cases). This margin for flexibility reflects the view taken under federal law that the defendant’s presence at trial is required “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Cardozo, /.), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Under this standard, the defendant’s absence is reversible error only where it would have a “relation, reasonably substantial, to his opportunity to defend.” Id. at 105-06, 54 S.Ct. 330. See also People ex reí. Lupo v. Fay, 13 N.Y.2d 253, 256-257, 246 N.Y.S.2d 399, 196 N.E.2d 56 (1963) (citing Snyder and holding that defendant’s absence from his counsel’s argument for a mistrial was not reversible error because it did not “affect any substantial right of his”); 3A Wright, supra, § 721.1 at 12 (stating that in some instances defendant’s absence even from evidentiary hearings can be regarded as harmless error). The right to be present at one’s own trial is “clearly waivable under both the Federal and State Constitutions.” Epps, 37 N.Y.2d at 349, 372 N.Y.S.2d 606, 334 N.E.2d 566. See Taylor v. United States, 414 U.S. 17, 19-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Allen, 397 U.S. at 342-43, 90 S.Ct. 1057;" }, { "docid": "16837465", "title": "", "text": "the jurors’ actions and assurances, that they could be fair and impartial arbiters. Phillips has not provided any reason to believe that the jurors’ assurances should be viewed with suspicion or are unreliable, and he has not demonstrated any juror bias. The Ohio Supreme Court’s decision affirming the trial court’s conduct was not contrary to or an unreasonable application of Smith v. Phillips or Remmer. See 28 U.S.C. § 2254(d). E. Phillips’s claim that the trial court instructed the jury in his absence Phillips contends that the trial court erroneously gave the jury supplemental instructions when he and his counsel were not present. The Supreme Court has held that A criminal defendant has the right to be present at any proceeding whenever his presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge.... [The] presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (quoting Snyder v. Mass., 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Phillips defaulted this claim by failing to raise it on direct review. Generally, to obtain review of a defaulted claim, a petitioner must demonstrate cause for the default and prejudice resulting from it. See Murphy, 551 F.3d at 502. However, these requirements do not apply if counsel was totally absent from a critical stage of the defendant’s criminal proceedings; such an absence is constitutional error even without a showing of prejudice. See United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Hudson v. Jones, 351 F.3d 212, 216 (6th Cir.2003). Phillips is not excused from showing prejudice because the incident at issue was not a critical stage of his trial. During its guilt-phase deliberations, the jury sent the trial judge a note stating: “We wish to have the following defined again[:] ‘Aggravated murder’ with all included definitions[;] also Aggravated" }, { "docid": "7507611", "title": "", "text": "his opportunity to defend against the charge. See Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 17, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). No instance cited by Bell involved an out-of-court examination of a witness, nor a situation in which a witness could not be cross-examined again in open court in front of the jury. Most instances were related to evidence to be admitted at trial. Some evidence, like the testimony of an additional DNA expert, was favorable to Bell’s position and was allowed by the judge. In the case of evidence not favorable to Bell, Bell was presented with the opportunity, in open court, to object to the admission of such testimony and to cross-examine any opposing witnesses. Other conferences related to insignificant aspects of trial, like alerting the trial court to the upcoming introduction of evidence and resolving a question regarding the proper numbering of an exhibit. (V J.A. at 2051-52.) I also find that fairness was not frustrated by his absence, and, in fact, was guarded closely by the trial court. Generally, it was clear that in the proceedings cited by Bell, the judge and the parties were sensitive to Bell’s absence, and the judge prefaced discussions by setting parameters regarding the scope of what could fairly be covered outside Bell’s presence. (Ill J.A. at 866-67.) On at least one occasion the judge halted the proceeding so that the defendant could be brought in before continuing. (IV J.A. at 1616.) On another occasion, the judge offered to summarize a conference on the record, but Bell’s counsel volunteered to brief Bell during a break. (V J.A. at 2053.) Fairness to Bell was clearly protected by the actions of the judge and the parties. Because there is no evidence that Bell’s confrontation rights were compromised by his intermittent absence from pretrial and trial proceedings, I find that Bell is unable to meet either the performance or prejudice standard required for an ineffective assistance claim under Strickland. Thus, he is" }, { "docid": "16918", "title": "", "text": "Rule 43 sets out its own, different, standard: the defendant has the right to be present at \"every stage of the trial.” Further, we know of no other Rule 43 cases that employ the \"critical stage” standard. . See Diaz, 223 U.S. at 455, 32 S.Ct. 250 (\"In cases of felony our courts, with substantial accord, have regarded [the defendant's right to be present] as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself.” (emphasis added)); Lynch, 132 F.2d at 113 (\"We do not understand that the right of a defendant to be present in court throughout his trial has ever been considered to embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict.”); see also Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (noting “the distinction everywhere drawn between proceedings at the trial and those before and after,” and observing that \"[m]any motions before trial are heard in the defendant’s absence, and many motions after trial or in the prosecution of appeals”) (overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). See generally Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (discussing the law that Rule 43 was meant to restate). . See, e.g., United States v. Bradford, 237 F.3d 1306, 1309-10 (11th Cir.2001) (noting that \"every other circuit to address the issue” has \"held that a trial commences under Rule 43 when jury selection begins,” and stating that \"[a]fter reviewing this precedent from other circuits, we find their reasoning compelling and conclude that, for purposes of Rule 43(b)(1) [the exception for a defendant’s voluntary absence after 'trial has commenced’], a 'trial has commenced’ when the jury selection process has begun”); United States v. Krout, 56 F.3d 643, 646 (5th Cir.1995) (finding for the same purpose that trial begins with jury selection and" }, { "docid": "1431390", "title": "", "text": "in which the right to presence guaranteed by Fed.R.Cr.P. 43 was dis-positive. . Faretta reiterated the holding of Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934): “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. “We are thus brought to an inquiry as to the relation between the defendant’s presence at a [portion of the proceeding] and the fundamental justice assured to him by the Constitution of the United States.” Neither Faretta nor Snyder concerned absence from a portion of the jury impaneling. Both cases rely on the Sixth and Fourteenth Amendments. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the defendant was denied permission to attend a view of the scene of the crime. The judge, attorneys for both parties, and the court stenographer accompanied the jurors. The court held that the defendant’s constitutional rights had not been violated because any assistance he could have provided his attorney would have been minimal. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), concerned the defendant’s right to represent himself at a criminal trial. Thus, they do not provide clear guidance to us in determining the extent of due process protection that should be afforded in the circumstances of the instant case. . Both the statutory and the constitutional rights are subject to the harmless error doctrine. Fed.R.Crim.P. 52(a); Chapman v. United States, 386 U.S. 18, 21-22, 87 S.Ct. 825, 826, 17 L.Ed.2d 705 (1967). In this case the Court said at page 22, 87 S.Ct. at page 827: “[T]he United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for ‘errors or defects which do not affect the substantial rights of the parties.’ 28 U.S.C. § 2111.” (Footnote omitted.) . The holding in United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22" }, { "docid": "3522162", "title": "", "text": "the proceedings in which Han-no’s jurors were removed. The code, 28 U.S.C. § 753(b), requires the recording ‘Verbatim by shorthand, mechanical means, electronic sound recording, or any other method....” [of] “all proceedings in criminal cases had in open court.... ” As we noted in United States v. Snead, 527 F.2d 590, 591 (4th Cir.1975), “[t]he direction is simple and clear; the statute should be obeyed.” Although prejudice may be required for reversal for violation of the statute, “non-compliance seems fraught with potential for mistake and possible prejudice.” 527 F.2d at 591. III. Olano’s third requirement is that the error prejudice the defendant so that the outcome of the district court proceeding was affected. Olano, — U.S. at -, 113 S.Ct. at 1777. Since dismembering a jury is analogous to impaneling a jury, we find United States v. Camacho, 955 F.2d 950 (4th Cir.1992), which concerned a defendant’s absence from voir dire, to be persuasive with respect to prejudice to the defendant in this case. In Camacho, 955 F.2d at 953, we said: A defendant’s absence during the impaneling of the jury certainly frustrates the fairness of the trial. See United States v. Gordon, 829 F.2d 119, 123-24 (D.C.Cir.1987). The absent defendant is denied the opportunity to give advice or suggestions to his lawyer concerning potential jurors. See Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). A defendant’s presence is also necessary so that he may effectively exercise his peremptory challenges, United States v. Washington, 705 F.2d 489, 497 (D.C.Cir.1983), a process that is essential to an impartial trial. Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892). As in Camacho, we analyze the case under a harmless error analysis and conclude as there that the defendant was prejudiced by his absence. Just as Camacho was prejudiced by being unable to contribute to his jury selection, Hanno was prejudiced because both he and his attorney were prevented by lack of notice from participating in the decision as to whether their selected jurors should be removed, which ones" }, { "docid": "17364002", "title": "", "text": "opportunity for Agent Sirbaugh to testify outside of the Defendant’s presence. Simmons also argues that he was unable to communicate with counsel during the jury view, and that this failure kept Simmons from having his counsel point out several important features of the scene. We do not believe either situation constituted reversible error in this case. The presence of Simmons’s counsel during the view resolves any constitutional issues arising from Simmons’s inability to take part in the view. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), (holding that a jury view with counsel present is constitutional). In addition, Agent Sirbaugh’s comments were not made in front of the jury, and, even if they were, he was simply assisting the district court in finding the sites already supplied by the Government. Moreover, even assuming the district court erred in conducting the view, Simmons cannot show that such error was harmful. This court has held that jury views of crime scenes, both court-ordered and unsupervised, are subject to harmless error review. See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th Cir.1997) (court-ordered jury view subject to harmless error review); Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir.1996) (en banc) (unsupervised jury view of crime scene subject to harmless error review). In determining the possible harm of any error, this court should “look to the nature and extent of the [jury’s] activity and assess how that activity fit into the context of the evidence presented at trial.” Sherman, 89 F.3d at 1138. “The level of conjecture inherent in this inquiry is reduced, making it even more appropriate for harmless-error analysis, when the jury view is personally supervised by the judge.” Arnold, 113 F.3d at 1361. An error is harmless “if a reviewing court is able to ‘say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’” United States v. Basham, 561 F.3d 302, 327 (4th Cir.2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90" }, { "docid": "23344977", "title": "", "text": "States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219 (1969). The Court may also exclude the defendant when necessary to preserve order and decorum in the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). It might be argued that exclusion of the defendant constitutes harmless error when his counsel was present and the defendant could not by his presence have contributed to his defense. In this case the only in camera testimony concerned revelation of the actual criteria contained in the profile which the defendant irrefutably satisfied. Defense counsel was present throughout the testimony and cross-examined the witnesses thoroughly. Arguably no prejudice resulted. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The harmless error argument is, however, not sufficiently persuasive to justify the procedure adopted. It is true that this defendant was in no position to assist his attorney with detailed knowledge of the events essential for a variety of tactical and other decisions in cross-examining, objecting and the like. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). But any defendant, if he is found guilty, should, as a matter of fundamental fairness and as part of the rehabilitative process, have the assurance, by reason of his direct observation, that justice was done. There could hardly be anything more rankling to a defendant and destructive of his morale and incentive to reform than to have the nagging suspicion that something was presented to the Court which should not have been. This factor, among others places in doubt the validity of Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), in which the Court approved the taking of a view" }, { "docid": "13807095", "title": "", "text": "our consideration of his request for COA.” Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir.2007) (quotations omitted). As we previously explained, a federal court cannot grant habe-as relief unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We turn to the three additional issues for which Mr. Lockett has requested a COA: (A) whether voir dire interviews of 19 jurors outside his presence violated his due process rights; (B) whether trial counsel was ineffective for failing to marshal evidence of mental illness during the penalty phase; and (C) whether the jury in struction regarding the weighing of aggravating and mitigating circumstances was constitutionally deficient. A. Voir Dire Interviews Outside Mr. Lockett’s Presence Mr. Lockett asserts that his due process rights were violated when the trial court held voir dire interviews with 19 jurors outside of his presence. The OCCA and the district court rejected this claim, and the district court concluded that a COA was not warranted. We deny Mr. Lock-ett’s motion for a COA on this ground. 1. Legal Background A defendant has a due process right to be present during critical stages of trial, which may include the voir dire process. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). The right to be present during voir dire is not absolute, however. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court noted that the Fourteenth Amendment did not grant “the privilege of presence when presence would be useless, or the benefit but a shadow.” Id. at 106-07, 84 S.Ct. 1489. “[T]he presence of a defendant is a condition of due process to the extent that a" }, { "docid": "1431389", "title": "", "text": "336, 78 L.Ed. 674 (1934), as based on the common law privilege of presence and not on the Constitution. In Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), and Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), the Supreme Court reversed judgments based on the violation of the defendant’s right “to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict.” Fillippon, 250 U.S. at 81, 39 S.Ct. at 436. In both cases the Court declined to characterize the right as one encompassed within due process. Rather, the Court described it as a rule of orderly conduct of a trial by jury. Id. at 81, 39 S.Ct. at 436; Shields, 273 U.S. at 589, 47 S.Ct. at 479. The Supreme Court recently referred to this non-constitutional rule in Rogers v. United States, 422 U.S. 35, 38-39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975), a case in which the right to presence guaranteed by Fed.R.Cr.P. 43 was dis-positive. . Faretta reiterated the holding of Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934): “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. “We are thus brought to an inquiry as to the relation between the defendant’s presence at a [portion of the proceeding] and the fundamental justice assured to him by the Constitution of the United States.” Neither Faretta nor Snyder concerned absence from a portion of the jury impaneling. Both cases rely on the Sixth and Fourteenth Amendments. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the defendant was denied permission to attend a view of the scene of the crime. The judge, attorneys for both parties, and the court stenographer accompanied the jurors. The court held that the defendant’s constitutional rights had not been violated" }, { "docid": "23239651", "title": "", "text": "the sentencing decision. The OCCA decision therefore was not contrary to, and did not involve an unreasonable application of, Caldwell. D. Mr. Bland’s Absence from, Individual Voir Dire On the second day of jury selection, the trial court conducted a limited voir dire of thirty-two individual jurors in chambers. Bland, 4 P.3d at 712. Initially, questioning focused on five potential jurors who had expressed personal concerns about serving on the jury. Id. Of those five potential jurors, one was excused for cause because he was going through a divorce and did not think that he could concentrate on the case, and another was excused due to illness. Tr. Jury Trial, Day Two, at 4-7, 15. While in chambers, defense counsel expressed concern regarding potential jurors’ awareness of pretrial publicity regarding Mr. Bland’s previous conviction, which had aired on the local news the preceding evening. The court agreed to question the potential jurors individually, and inquired whether Mr. Bland’s presence was required. Id. at 17. Defense counsel stated that Mr. Bland’s presence was not required. Potential jurors were individually called into chambers and questioned as to whether they watched the news or heard about any news reports involving the case. See Bland, 4 P.3d at 712. Only one potential juror was excused because he learned, from an inaccurate news report, that Mr. Bland had a prior murder conviction. Id. at 712-13. The remaining potential jurors returned to the courtroom and voir dire was conducted in open court, with Mr. Bland present and able to exercise his peremptory challenges. Id. at 713. Despite defense counsel’s explicit statement to the trial court that Mr. Bland’s presence was not required during the in-chambers questioning, Mr. Bland now contends that his absence violated his right to be present at all critical stages of the trial under Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Mr. Bland raised this argument on direct appeal to the OCCA, which rejected it on" }, { "docid": "15068177", "title": "", "text": "482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). However, that is not true \" 'when presence would be useless, or the benefit but a shadow.' ” Id. (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332). The Court has held there is no constitutional right to be present in proceedings where the defendant could have done more to help his cause than in this case. See Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (no right to be present during hearing to determine competency of prosecution's key witnesses); United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 1484-85, 84 L.Ed.2d 486 (1985) (per curiam) (no right to be present during in camera examination of juror who complained of being intimidated by defendant); Snyder, 291 U.S. at 122, 54 S.Ct. at 338 (no right to be present when jury was taken to view the crime scene). Because Wood has, for her own reasons, chosen not to contest this point, we leave it for another day. See, e.g., Gagnon, 470 U.S. 522, 105 S.Ct. 1482 (deciding, two years after Rushen, that type of absence at issue in Rushen did not amount to constitutional error). . Wood appeals and Rice cross-appeals on grounds other than the district court’s ruling that Rice’s absence at return of the sentence amount-cd to reversible error. We leave the panel’s opinion on these issues undisturbed. The panel, however, found it unnecessary to decide whether the district court had properly denied Wood’s motion to strike a particular set of Rice's claims (the Group B claims) because they only related to sentencing and Rice’s sentence had already been set aside. Rice III, 44 F.3d at 1403. Because we vacate the panel’s ruling as to the sentence, the Group B claims once again become relevant and we refer them back to the panel. . The Supreme Court, for example, has held that a defendant’s confession has such a powerful effect that an instruction admonishing the jury to" }, { "docid": "15034748", "title": "", "text": "our ruling in this case. TROTT, Senior Circuit Judge, dissenting: Even were I to start from the assumption that Judge Fischer’s denial of a continuance to Kloehn in connection with Kloehn’s son’s dire medical condition was an abuse of discretion, I am unable to join in Judge Reinhardt’s opinion. Why? The error, if any, was demonstrably harmless. Judge Fischer’s decision possibly implicates two constitutional rights, neither of which Kloehn explicitly referenced in the district court. The first right is the Due Process right “to be present from the time the jury is impaneled until its discharge after rendering the verdict.” Shields v. United States, 273 U.S. 583, 589, 47 S.Ct. 478, 71 L.Ed. 787 (1927); see also Kentucky v. Stincer, 482 U.S. 730, 745-48, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). This right, however, is not absolute or “structural,” and if violated, it is subject to the harmless error rule. Stincer, 482 U.S. at 745-47, 107 S.Ct. 2658 (defendant excluded from a pre-trial competency hearing regarding child witnesses against him); Rushen v. Spain, 464 U.S. 114, 117-18, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (defendant not present at conversations during the trial between a juror and the judge regarding the juror’s ability to be impartial); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (defendant excluded from the jury’s silent visit to the scene of the crime), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Rice v. Wood, 77 F.3d 1138, 1141-45 (9th Cir.1996) (en banc) (defendant’s absence during jury’s pronouncement of sentence after a finding of guilt subject to harmless-error analysis); Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir. 1995) (defendant’s absence during a read back for testimony requested by the jury was subject to harmless-error analysis). The key question is whether the defendant’s absence from the proceeding impaired the defendant’s opportunity to defend himself against the charges; and this issue “should be considered in light of the whole record.” United States v. Gagnon, 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d" }, { "docid": "15034749", "title": "", "text": "114, 117-18, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (defendant not present at conversations during the trial between a juror and the judge regarding the juror’s ability to be impartial); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (defendant excluded from the jury’s silent visit to the scene of the crime), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Rice v. Wood, 77 F.3d 1138, 1141-45 (9th Cir.1996) (en banc) (defendant’s absence during jury’s pronouncement of sentence after a finding of guilt subject to harmless-error analysis); Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir. 1995) (defendant’s absence during a read back for testimony requested by the jury was subject to harmless-error analysis). The key question is whether the defendant’s absence from the proceeding impaired the defendant’s opportunity to defend himself against the charges; and this issue “should be considered in light of the whole record.” United States v. Gagnon, 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). The second right is the right guaranteed by the Sixth Amendment’s Confrontation Clause to confront witnesses. The purposes of this right are (1) to guarantee the defendant a “face-to-face” meeting with witnesses against him, Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); and (2) to ensure a defendant an “opportunity for cross examination.” Stincer, 482 U.S. at 739, 107 S.Ct. 2658. A violation of either value of this non-structural right is also subject to harmless-error analysis. Coy, 487 U.S. at 1021-22, 108 S.Ct. 2798. Kloehn’s counsel did not articulate this constitutional concern either. With these considerations in mind, I cannot identify any prejudice or harm to Kloehn that arose from the denial of his motion to continue. Judge Fischer’s “error” appears to have been harmless beyond a reasonable doubt in terms of its actual impact on any of Kloehn’s rights protected by the Constitution. Now, of course, his counsel claims — with no support whatsoever in the record — that (1) Kloehn’s testimony on redirect and recross" }, { "docid": "15068176", "title": "", "text": "analysis. In this case, the error was harmless. We vacate the panel opinion to the extent it is inconsistent herewith and refer the case to the panel for further proceedings. See note 3 swpra. The panel opinion is VACATED in part; the district court’s judgment is REVERSED in part; the case is REMANDED to the original three-judge panel for resolution of the remaining issues. . While it was the judge who pronounced sentence, he had no discretion under Washington law. Once the jury found insufficient mitigating circumstances to recommend leniency, the death sentence was mandatory. See Wash.Rcv.Codc § 10.95.030(2) (\"If ... the trier of fact finds that there arc not sufficient mitigating circumstances to merit leniency, the sentence shall be death.\"). . The concession is surprising, as this is an open question. The Supreme Court has stated that a defendant \"has a due process right 'to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.’ \" Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). However, that is not true \" 'when presence would be useless, or the benefit but a shadow.' ” Id. (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332). The Court has held there is no constitutional right to be present in proceedings where the defendant could have done more to help his cause than in this case. See Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (no right to be present during hearing to determine competency of prosecution's key witnesses); United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 1484-85, 84 L.Ed.2d 486 (1985) (per curiam) (no right to be present during in camera examination of juror who complained of being intimidated by defendant); Snyder, 291 U.S. at 122, 54 S.Ct. at 338 (no right to be present when jury was taken to view the crime scene). Because Wood has, for her own" }, { "docid": "23239652", "title": "", "text": "jurors were individually called into chambers and questioned as to whether they watched the news or heard about any news reports involving the case. See Bland, 4 P.3d at 712. Only one potential juror was excused because he learned, from an inaccurate news report, that Mr. Bland had a prior murder conviction. Id. at 712-13. The remaining potential jurors returned to the courtroom and voir dire was conducted in open court, with Mr. Bland present and able to exercise his peremptory challenges. Id. at 713. Despite defense counsel’s explicit statement to the trial court that Mr. Bland’s presence was not required during the in-chambers questioning, Mr. Bland now contends that his absence violated his right to be present at all critical stages of the trial under Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Mr. Bland raised this argument on direct appeal to the OCCA, which rejected it on the ground that Mr. Bland’s “absence from the brief, limited, individual voir dire was neither a due process nor statutory violation,” and that even if there was error, “[a]ny error in conducting the individual voir dire in [his] absence was harmless beyond a reasonable doubt.” Bland, 4 P.3d at 713. The district court, deferring to the OCCA’s decision, likewise rejected Mr. Bland’s challenge. Although a defendant has a due process right “to be present ... whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,” this right does not require that a defendant be present at all proceedings. Snyder, 291 U.S. at 105-06, 54 S.Ct. 330. Instead, the constitutional right to be present exists “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 54 S.Ct. 330. For example, a defendant need not be present during all communications between a judge and a juror. See United States v. Gagnon, 470 U.S. 522, 526," }, { "docid": "17364001", "title": "", "text": "On the first day of the trial, the district court, accompanied by counsel, the Defendant, and the lead investigator, Agent James E. Sirbaugh of the ATF, took the jury to view the Eagle Court Apartments. The Defendant stayed in a van with U.S. Marshals during the view. Before entering the apartments, Agent Sirbaugh suggested to the district court, outside the presence of the jury, that the jurors look at the bullet holes in the apartment doors from both sides, a request the district court granted. Once inside the apartment, and again outside the jury’s presence, Agent Sirbaugh suggested that the jurors see the holes in Ruthers’s refrigerator. Simmons’s counsel objected to that view because it was not on the Government’s pretrial list of sites, and the district court sustained the objection. The jurors completed the view and returned to court. On appeal, Simmons does not contest the conducting of a jury view, but rather argues that, given Special Agent Sir-baugh’s comments, the jury view was transformed from a permissible crime scene inspection into an unconstitutional opportunity for Agent Sirbaugh to testify outside of the Defendant’s presence. Simmons also argues that he was unable to communicate with counsel during the jury view, and that this failure kept Simmons from having his counsel point out several important features of the scene. We do not believe either situation constituted reversible error in this case. The presence of Simmons’s counsel during the view resolves any constitutional issues arising from Simmons’s inability to take part in the view. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), (holding that a jury view with counsel present is constitutional). In addition, Agent Sirbaugh’s comments were not made in front of the jury, and, even if they were, he was simply assisting the district court in finding the sites already supplied by the Government. Moreover, even assuming the district court erred in conducting the view, Simmons cannot show that such error was harmful. This court has held that jury views of crime scenes, both court-ordered and unsupervised, are subject to harmless error review." } ]

[ { "docid": "21200706", "title": "", "text": "modify “owned”. In State Farm Mutual Automobile Insurance Co. v. Chatham, Tex.Civ. App., 318 S.W.2d 684, 688, it was held that even though title was not assigned to him until a later date, the installment purchaser of an automobile became the “owner” thereof, within the meaning of the term “owned” used in the policy, when he received possession of the vehicle. It has also been held that a policy insuring the owner of an automobile does not insure one who holds title merely for purposes of security. Merchants Mutual Casualty Co. v. Pinard, 87 N.H. 475, 183 A. 36. See: 45 C.J.S. Insurance § 829. In Nettles v. General Accident Fire & Life Assurance Corporation, 234 F.2d 243, 247 (5th Cir. 1956), the Fifth Circuit, considering a fact situation closely similar to the one confronting this court in the instant ease, said: “Whether Fowler (purchaser) possessed a merchantable or marketable title to the vehicle is certainly not determinative of whether he was in fact the owner. All of the requisites for perfecting a contract of sale having been accomplished, we hold that Fowler, not Big Four (the dealer), was the owner of the vehicle.” Ownership in the purchaser was held to be established regardless of the fact that he did not have a certificate of title pursuant to the Louisiana Certificate of Title Law. There is a wide split in the cases as to whether the purchaser of an automobile under a conditional sales contract in which title is retained in the seller until the purchase price is paid has “sole and unconditional” ownership required by various kinds of insurance policies including liability insurance. See 7 Am. Jur.2d Automobile Insurance, Section 21. It has been held that where the prospective purchaser is in possession, he may be held to have an equitable title sufficient to satisfy the requirement of “unconditional and sole ownership” and the seller may be held to have lost his sole 'ownership interest. Pacific States Fire Insurance Co. v. Rowan Motor Co., 122 Or. 665, 260 P. 441; Borger v. Morrow, Tex.Civ.App., 87 S.W.2d 758; See: 7" } ]

[ { "docid": "21859706", "title": "", "text": "of Columbia construed an analogous Maryland statute under a similar set of facts in McCarthy v. Imported Cars of Maryland, Inc. (In re Johnson), 230 B.R. 466 (Bankr.D.D.C.1999). In Johnson, an automobile dealer “spot delivered” an automobile to a purchaser who executed an Installment Contract, Spot Delivery/Financing, and a Buyer’s Order. The terms of the spot delivery were that buyer took possession of the car pending approval by a financing source. The purchaser filed a Voluntary Chapter 7 Petition prior to obtaining third party financing for the purchase of the car. No Certificate of Title was issued on the vehicle. After the Petition was filed, the automobile dealer repossessed the automobile. The dealer contended that it retained title by virtue of the spot delivery terms. The Chapter 7 Trustee brought an action against the dealer for violation of the automatic stay. The Bankruptcy Court relied on Md. Code Ann., COMMERCIAL Law § 2-401(1) and held that: Even if College Park [the automobile dealer] had retained or reserved title, it would still only have a security interest. The passage of title cannot occur before goods are identified to the contract, nor can the passage of title be delayed until after shipment or delivery of the goods to the buyer. After shipment or delivery, any retention of title by the seller results only in the reservation of a security interest. In between these extremes, the parties may freely specify the time at which title passes. [Citations omitted.] Id. at 468. S.C. Code § 36-2-401 is identical to the Maryland statute relied upon in Johnson. Further, Maryland has similar provisions concerning vehicle transfers pursuant to the motor vehicle statutes. Compare Md. Code Ann., TRAnsp. § 13-107(c) (WESTLAW through 2003 Sess.) with S.C. Code § 56-19-320 (Law.Coop.1991). Compare Md. Code Ann., Teansp. § 13-112 (WESTLAW through 2003 Sess.) with S.C. Code Ann. § 56-19-360 (Law.Coop.1991). Finally, the court in Johnson recognized the ability in that case of the dealer to rescind its agreement but found it was not done. The Court finds the reasoning of Johnson persuasive. In the matter before the Court, even" }, { "docid": "2106993", "title": "", "text": "had been executed in blank by White, and the reassignment to White of the old certificate of title to the station wagon was duly executed. On that same day the conditional sales contract was delivered to Motor Credit Corporation, which immediately paid Commonwealth Ford for it. All of the other papers were submitted, or held for submission, to one of Commonwealth Ford’s supervisory officials for final inspection and approval. When that occurred is not shown, but the District Court found that, in the normal course of business, it would have occurred on the morning of December 22. The Division of Motor Vehicles closed for the Christmas holidays at noon on December 22, 1961, and did not open again until December 27. On December 27, Commonwealth Ford delivered by messenger to the Division of Motor Vehicles all of the necessary papers in the White transaction. The Division thereupon issued a new title certificate in White’s name, showing the lien of Motor Credit Corporation, and issued a new temporary registration certificate. Meanwhile, on December 24, 1961, the station wagon operated by White struck and injured the plaintiff, Wicker. Wicker’s theory is that because the reassigned certificate had not been delivered to White on the 20th, Commonwealth Ford remained the owner of the station wagon, at least until December 27 when the reassigned title certificate was delivered to the Division of Motor Vehicles and the new title certificate was issued in White’s name. As owner of the station wagon, Wicker reasons, Commonwealth Ford had the right to repossess it and deny White its use, so that White’s possession and operation of the vehicle were permissive and not by virtue of his own right. We disagree. Under § 46.1-90 of the Virginia Code of 1950, an automobile dealer who acquires for resale an automobile from another is not required to forward the title certificate to the Division of Motor Vehicles. When the vehicle is resold by the dealer to another person, however, the dealer “shall give notice of the transfer to the Division and shall endorse and acknowledge an assignment and warranty of title" }, { "docid": "21098243", "title": "", "text": "avoided. Thus under Fink, Mercury Finance’s security interest in the van could not have been perfected before July 22, 1998, because the application was not filed within the 20 day time period prescribed by section 547(c)(3)(B). The trustee has argued that this circumstance supports his position in this case. However, because the court finds the Mercury Finance's lien was perfected more than 90 days prior to bankruptcy, section 547(c)(3)(B) has no bearing in this case. . Code § 46.2-638 states in part; A certificate of title, when issued by the Department showing a security interest, shall be adequate notice to the Commonwealth, creditors, and purchasers that a security interest in the motor vehicle exists and the recording or filing of such creation or reservation of a security interest in the county or city wherein the purchaser or debtor resides or elsewhere is not necessary and shall not be required.... . The court's conclusion that the application date is the appropriate date is further supported by analogy to Va.Code § 46.2-628 for transfer of title. According to Va.Code § 46.2-628 an owner transfers title by \"fully and correctly endorsing] the assignment and warranty of title on the certificate of title of the motor vehicle ... with a statement of all security interests on it, and shall deliver the certificate to the purchaser or transferee at the time of delivering the motor vehicle.\" Cases under the Virginia law have interpreted the transfer of title provisions to hold that once the transferor has completed the statutory duties of assignment and delivery the sale is complete. See, e.g., Wicker v. National Sur. Corp., 330 F.2d 1009, 1012 (4th Cir.1964). Thus, the transferee's failure to timely file the documents with DMV as required by law does not affect the completion of sale. See id. A similar argument can be made for perfection. Once the dealer/transferor has submitted an application to DMV, all actions have been completed to perfect the security interest other than the issuance by DMV; the final action of issuance by DMV is out of the control of the creditor." }, { "docid": "21859705", "title": "", "text": "the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this chapter and matters concerning title become material the following rules apply: (1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (§ 36-2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this act. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the chapter on secured transactions (Title 36, Chapter 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed to by the parties. S.C. Code ANN. § 36-2-401 (Law.Coop.2003). The Bankruptcy Court for the District of Columbia construed an analogous Maryland statute under a similar set of facts in McCarthy v. Imported Cars of Maryland, Inc. (In re Johnson), 230 B.R. 466 (Bankr.D.D.C.1999). In Johnson, an automobile dealer “spot delivered” an automobile to a purchaser who executed an Installment Contract, Spot Delivery/Financing, and a Buyer’s Order. The terms of the spot delivery were that buyer took possession of the car pending approval by a financing source. The purchaser filed a Voluntary Chapter 7 Petition prior to obtaining third party financing for the purchase of the car. No Certificate of Title was issued on the vehicle. After the Petition was filed, the automobile dealer repossessed the automobile. The dealer contended that it retained title by virtue of the spot delivery terms. The Chapter 7 Trustee brought an action against the dealer for violation of the automatic stay. The Bankruptcy Court relied on Md. Code Ann., COMMERCIAL Law § 2-401(1) and held that: Even if College Park [the automobile dealer] had retained or reserved title, it would still only have a security" }, { "docid": "2106994", "title": "", "text": "station wagon operated by White struck and injured the plaintiff, Wicker. Wicker’s theory is that because the reassigned certificate had not been delivered to White on the 20th, Commonwealth Ford remained the owner of the station wagon, at least until December 27 when the reassigned title certificate was delivered to the Division of Motor Vehicles and the new title certificate was issued in White’s name. As owner of the station wagon, Wicker reasons, Commonwealth Ford had the right to repossess it and deny White its use, so that White’s possession and operation of the vehicle were permissive and not by virtue of his own right. We disagree. Under § 46.1-90 of the Virginia Code of 1950, an automobile dealer who acquires for resale an automobile from another is not required to forward the title certificate to the Division of Motor Vehicles. When the vehicle is resold by the dealer to another person, however, the dealer “shall give notice of the transfer to the Division and shall endorse and acknowledge an assignment and warranty of title upon the certificate and deliver it to the person to whom the transfer is made.” By § 46.1-89 the transferee is required to forward the assigned certificate to the Division, with applications for registration of the automobile in the name of the transferee and for a certificate of title. It has been held by Virginia’s Supreme Court of Appeals that the requirements of § 46.1 — 90 are mandatory, and that, in some circumstances, failure to execute an assignment of the title documents prevents passage of the legal title. The question first came up in a very different context. In Thomas v. Mullins, 153 Va. 383, 149 S.E. 494, it appeared that the plaintiff had selected an automobile from the defendant’s stock. Before any instruments of transfer had been executed, however, the automobile was destroyed by fire while in the dealer’s garage and in his custody. The Court held that it was an executory not an executed sale, and that the risk of loss by fire remained upon the dealer. It relied in large measure" }, { "docid": "4769336", "title": "", "text": "performance with reference to physical delivery by delivering the vehicles in accordance with Cohen’s instructions. When delivery was completed, title passed to Cohen. The appellant, however, argues that we should ignore the title-passing provisions of the UCC and instead rely upon a statutory procedure for titling a vehicle under California law that purports to make transfers ineffective pending compliance with motor vehicle titling procedures, the effect of which would have the dealers passing title directly to Cohen’s customers. Cal.Veh.Code § 5600 (West Supp.1996). Vehicle Code § 5600 does not, however, make the UCC inapplicable. California courts have long construed Vehicle Code § 5600 to refer to legal title but not equitable title and have held that equitable title does pass at the time of delivery. Stoddart v. Peirce, 53 Cal.2d 105, 116-17, 346 P.2d 774, 780 (1959); People v. Aiken, 222 Cal.App.2d 45, 48, 34 Cal.Rptr. 828, 830-31 (1963). In other words, “transfer of the property interest in a motor vehicle is effective as between the immediate parties even though they have not complied with the registration statute.” Security Pac. Nat'l Bank v. Goodman, 24 Cal.App.3d 131, 136, 100 Cal.Rptr. 763, 768 (1972); Rodgers v. Schneider (In re Laguna Beach Motors, Inc.), 148 B.R. 322 (9th Cir. BAP 1992). Once equitable title has passed, a dealer who has not retained a security interest has attenuated rights in the vehicle. English, 17 Cal.App.3d at 1046-47, 95 Cal.Rptr. at 505-06 (repossession constituted conversion). Harmonizing Vehicle Code § 5600 with the subsequently-enacted UCC is straightforward. UCC Article 2 does not impair or repeal any statute regulating sales to consumers or specified classes of buyers. Cal.Comm.Code § 2102 (West 1964). Vehicle Code § 5600 supplements the UCC and operates to vary UCC provisions and only to the extent where directly in conflict. English, 17 Cal.App.3d at 1046, 95 Cal.Rptr. at 505-06. The focus is on UCC § 2401(1), which permits the parties, once goods have been identified to a contract, to provide for passing of title “from the seller to the buyer in any manner and on any conditions explicitly agreed on by the" }, { "docid": "2106997", "title": "", "text": "similar interpretation upon Virginia’s statute. In United States Fidelity and Guaranty Corporation v. Meyers Motors, D.C., 143 F.Supp. 96, it apeared that the dealer had delivered the automobile to the purchaser, but had not executed an assignment of the certificate when the purchaser was involved in a collision occasioning injuries. Judge Barksdale concluded that because of § 46.1-90 the sale had not been executed and the dealer’s insurance afforded coverage. Judge Barksdale reached the same conclusion in a different context when the United States seized the automobile when the purchaser used it unlawfully in the liquor business. United States v. One Hudson Hornet Sedan, D.C., 110 F.Supp. 41. It was held that the dealer was entitled to remission because, not having executed the assignment of the title certificate at the time of seizure of the automobile, he was still its owner. We accept, of course, Virginia’s interpretation of its statute. In Virginia, if the assignment of the title certificate has not been executed at the time of the accident, the seller has at least a legal title and the entire transaction may be held to be executory. At the same time, it is clear that if the seller delivers the title certificate to the purchaser, the assignment on the back of the certificate having been properly executed, the seller has divested himself of all interest in the vehicle whether or not the purchaser thereafter complies with his statutory duty of filing the assigned certificate with the Division of Motor Vehicles. Nationwide Mutual Insurance Company v. Cole, 203 Va. 337, 124 S.E.2d 203. Under the Virginia decisions execution of the assignment and delivery of the certificate are, or may be, critical and conclusive of the question of passage of title, but filing of the documents with the Division of Motor Vehicles is not. Here, unlike the situations in the Mullins, Storm and Myers Motors’ cases, at the time the injury was inflicted the assignment of the title had been properly and completely executed and the papers were being held only for the purpose of filing them in the Division of Motor" }, { "docid": "13892124", "title": "", "text": "That case, however, is clearly distinguishable from the instant case. At page 95 of 113 N.E.2d, the court quoted the following Ohio statute: “Section 6290-4. ‘No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same * * *. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.’ ” In view of the quoted statute, together with other Ohio statutes, the court concluded that where an owner fails to comply with the Ohio Certificate of Title Act by not assigning and delivering his certificate of title to the purchaser, title does not pass and the seller remains the owner of the vehicle for all purposes including insurance coverage. Arkansas has no similar statute with regard to certificates of title, and the reasoning of the Garlick case does not apply to the case at bar. It is true that the Arkansas certificates of title law provides that the owner of a registered vehicle, upon transferring his title or interest therein, shall endorse an assignment and warranty of title upon the certificate of title for such vehicle and shall deliver the certificate of title to the purchaser or transferee at the time of delivering the vehicle. Sec. 75-148, Ark.Stats.1947, Anno.1955 Supp. The law also provides that the transferee before operating or permitting the operation of such vehicle upon a highway shall apply for and obtain registration of the vehicle; and the transferee must obtain a new certificate of title. Sec. 75-149, Ark.Stats., supra. There is no Arkansas statute, however, which requires" }, { "docid": "19165052", "title": "", "text": "§ 679.505(2). While Joyner does hold that the superior interest holder did not become the owner of the collateral but rather became a secured party in possession of collateral, the decision does not contain any language regarding the status of a debtor’s ownership interest — notably, it only discusses the relationship between two secured creditors, and does not examine the rights of a creditor vis-á-vis a debtor after repossession. This Florida court case does not say, and cannot be read to say, that the debtor still owns the collateral while the creditor in possession does not. In short, based on the language of the Florida UCC, and the little case law interpreting the statute, we are constrained to conclude that the Florida UCC does not establish who owns the repossessed vehicles. We next look at the Florida Certificate of Title statute to determine whether it speaks to the vehicles’ ownership. B. The Florida Certificate of Title statute The Florida UCC establishes how a secured creditor may repossess and dispose of any type of secured collateral upon a debtor’s default. Where a motor vehicle is the collateral at issue, however, Florida has codified specific legislation regarding ownership, title, and transfer, and we must look at the Florida Certificate of Title statute to determine how it speaks to ownership of repossessed vehicles. See Tug Allie-B, Inc. v. United States, 273 F.3d 936, 941 (11th Cir.2001) (“[C]ourts generally adhere to the principle that statutes relating to the same subject matter should be construed harmoniously if possible, and if not, that more recent or specific statutes should prevail over older or more general ones.”) (quoting Southern Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368, 1373 (11th Cir.1999) (quotations and citations omitted)). After reviewing the title statute, we are satisfied that its language and Florida case precedent lead to the conclusion that ownership in fact passed to the Creditors upon repossession. The Florida statute generally provides that a certificate of title is required in order to obtain marketable title to sell a vehicle. See Fla. Stat. § 319.22. If the vehicle at issue" }, { "docid": "21017587", "title": "", "text": "which title passes directly from the manufacturer or seller to the banker or lender who as owner delivers the goods to the dealer in whose behalf he is acting secondarily, and to whom title goes ultimately when the primary right of the banker has been satisfied.” Hamilton National Bank v. McCallum, 6 Cir., 58 F.2d 912. In order to constitute a trust receipt transaction under the Oregon Uniform Trust Receipts Law the entruster bank must acquire its security interest prior to or at the same time as delivery is made to the dealer, or delivery must be made under some arrangement whereby the security interest is to be acquired “promptly”. Section 75-102, O.C.L.A. In other words, the delivery of the goods to the dealer must stem from an arrangement between the bank and the dealer for the acquisition of the goods by means of advances from the bank. In commenting on this requirement of the Act J. Francis Ireto'n stated: “It does not insist upon title in and possession from the entruster, so that source of title and possession is immaterial but this extension of the trust receipt doctrine is limited since the act is carefully drawn to apply to new financing of new acquisitions only, so its use is not permissible in all the usual chattel mortgage or conditional sale transactions.” In proceedings of the Section of Corporation, Banking and Mercantile Law of American Bar Association, Cincinnati, Ohio, December 17-18, 1945, Page 112. No authority is cited in the brief of the bank which holds that a trust receipt may be validly employed under the Uniform Trust Receipts Act to give security upon merchandise owned by the dealer as the result of a prior acquisition. The original California law deviated from the Uniform Trust Receipts Act in adding a clause which specifically permitted the giving of a trust receipt upon merchandise theretofore acquired. The California cases which were decided under the original California law are accordingly not authority under the Uniform Trust Receipts Act. J. Francis Ireton in the article referred to (page 115), points out this situation and" }, { "docid": "20967239", "title": "", "text": "a new certificate of title thereto is unable to present a certificate of title by reason of the same being lost or unlawfully detained by one in possession or whenever such certificate of title is otherwise not available, the Division may receive the application ■and examine into the circumstances •of the case and may require the filing of affidavits or other information. When the Division is satisfied that the applicant is entitled thereto it may register the motor vehicle, trailer or semitrailer and issue a new registration card, license plate or plates and certificate of title to the person entitled thereto.” Since the conditional sales contract had been assigned to Home Finance and since Home Finance obtained a power of attorney from Bowman authorizing a change of title, it seems a fair interpretation of these two statutes to conclude that Home Finance automatically acquired title to the Chevrolet by operation of law when it repossessed the car. The fact that Home Finance failed to send in the proper papers to the Division of Motor Vehicles does not alter the fact that under § 46.1-93 a transfer of ownership was consummated by operation of law at the time the repossession took place. In Eureka-Security Fire & Marine Insurance Company v. Maxwell, 276 F.2d 132 (4th Cir.1960), the Court of Appeals held that title by operation of law was not acquired where the original vendor, after assigning the conditional sales contract to a bank, repossessed an automobile from a defaulting vendee without first getting a reassignment of the sales contract from the bank. In the present ease the conditional sales contract was owned by the repossessor, Home Finance Company, thus distinguishing the Eureka situation and placing the transaction squarely within the meaning of § 46.1-93. With the power of attorney from Bowman, Home Finance Company acquired sole interest in the Chevrolet and became the owner by operation of law under the Virginia statute. Having concluded (1) that Home Finance owned the automobile in question at the time of the accident, we must decide (2) whether Thomas Trussell was operating the car with" }, { "docid": "3831646", "title": "", "text": "acknowledges that the Elliotts retain in the automobile pursuant to section 1309.49 of the Ohio Revised Code. In Whiting Pools, the Court stated that ownership of property, in the context of seizure by the IRS, is transferred only when the property is sold to a bona fide purchaser at a tax sale. Whiting Pools, 462 U.S. at 211, 103 S.Ct. at 2316-17(citing Bennett v. Hunter, 9 Wall. 326, 76 U.S. 326, 19 L.Ed. 672 (1869); 26 U.S.C. § 6339(a)(2)). In essence, a complete transfer of ownership occurs only after a sale which extinguishes any interest in the property that the debtor may have held. Herein, there is a transfer of title by operation of law under section 4505.10(A) of the Ohio Revised Code before disposition of the vehicle by the secured party. After receipt of a repossession title, but before sale of the collateral, a secured party cannot exercise unrestricted control over the repossessed vehicle, due to the right of redemption, and accordingly does not have true “ownership” rights, despite holding a repossession title. Under section 1309.49 of the Ohio Revised Code, a debtor has the right to redeem the vehicle before disposition by the secured party. It is only after the disposition that the debtor loses all interest in the property and full ownership vests in a third party. Validating this point is the necessity for the lender to bid successfully at the sale. Clearly, this factor evinces that the lender lacks full ownership of a vehicle in instances where it only holds a repossession title. In other words, under Ohio law, the repossessing lender that desires to become a purchaser cloaked with the full bundle of ownership rights has to bid at a sale just like any other person. See Ohio Rev. Code Ann. § 1309.47. Thusly, the conduct of National City is not the behavior required of someone who is already the full owner of a vehicle. At the time of sale, but not before, Whiting Pools would preclude the property from consideration as estate property. Prior to such disposition, however, the property is still capable of" }, { "docid": "19165058", "title": "", "text": "turn to determine who is liable for the negligent operation of the car). Furthermore, the method described in the Florida title statute is not the only way to transfer title, as actual title may pass without changing the name registered with the state. See, e.g., Bunting v. Daly’s, Inc., 528 So.2d 106, 107 (Fla.Dist.Ct.App. 1988) (“It has been settled law in this jurisdiction for many years ... that the failure of the purchaser to obtain the title certificate at the time of sale does not prevent the passage of title from the seller to the buyer.”) (quoting Correria v. Orlando Bank & Trust Co., 235 So.2d 20 (Fla.Dist.Ct.App.1970)). Under this Florida case law, it is abundantly clear that a creditor can, contrary to the bankruptcy court’s determination, own a vehicle without a certificate of title or a certificate of repossession in its name. The Debtors nonetheless argue that because the Creditors recognize that one can own property without having marketable title to it, § 319.28 must concern only the procedure to obtain marketable title, and cannot be relied on as the substantive law governing ownership. Instead, the Debtors say, other substantive law, like the UCC, should be consulted to determine when ownership transfers. We remain unpersuaded. Although marketable title is only evidence of ownership, § 319.28 squarely recognizes that an event of transfer of ownership is repossession. See Fla. Stat. § 319.28(l)(a) (“In the event of the transfer of ownership of a motor vehicle ... whenever (3)27 repossession is had upon default in performance of the terms of a security agreement ... and upon ... presentation of satisfactory proof to the department of ownership ... and upon payment of the fee ... and presentation of an application for certificate of title, the department may issue to the applicant a certificate of title thereto.”). In fact, § 319.28(2)(b) states that: “In case of repossession of a motor vehicle ... pursuant to the terms of a security agreement ..., an affidavit by the party to whom possession has passed stating that the vehicle ... was repossessed upon default in the terms of" }, { "docid": "4769337", "title": "", "text": "the registration statute.” Security Pac. Nat'l Bank v. Goodman, 24 Cal.App.3d 131, 136, 100 Cal.Rptr. 763, 768 (1972); Rodgers v. Schneider (In re Laguna Beach Motors, Inc.), 148 B.R. 322 (9th Cir. BAP 1992). Once equitable title has passed, a dealer who has not retained a security interest has attenuated rights in the vehicle. English, 17 Cal.App.3d at 1046-47, 95 Cal.Rptr. at 505-06 (repossession constituted conversion). Harmonizing Vehicle Code § 5600 with the subsequently-enacted UCC is straightforward. UCC Article 2 does not impair or repeal any statute regulating sales to consumers or specified classes of buyers. Cal.Comm.Code § 2102 (West 1964). Vehicle Code § 5600 supplements the UCC and operates to vary UCC provisions and only to the extent where directly in conflict. English, 17 Cal.App.3d at 1046, 95 Cal.Rptr. at 505-06. The focus is on UCC § 2401(1), which permits the parties, once goods have been identified to a contract, to provide for passing of title “from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.” Cal.Comm.Code § 2401(1) (West Supp.1996). Only the word “explicitly” stands in the way of giving Vehicle Code § 5600 full effect as a “manner” or “condition” on passing title under UCC § 2401(1) that applies, by operation of law, as an implicit term in every California motor vehicle sales contract. Accordingly, “explicitly” conflicts with Vehicle Code § 5600 and is inoperative in UCC § 2401(1) with respect to motor vehicle sales. During the interim before title formally passed, Cohen’s “special property” in the vehicles that is recognized by UCC § 2401(1) included equitable title. In view of Cohen’s payment in full with cheeks that the drawee bank honored, there was no other implicit condition on delivery. Cal.Comm.Code § 2511 (West Supp.1996). The legal title that remained with the dealers pending compliance with Vehicle Code § 5600 was of only nominal value. English, 17 Cal.App.3d at 1048, 95 Cal.Rptr. at 507. The dealers were obliged to deliver the vehicles in accordance with Cohen’s instructions and were, in practical effect, required to act as Cohen’s agents" }, { "docid": "20967235", "title": "", "text": "ownership of automobiles would be contrary to the intent of Virginia’s registration laws, and would create confusion, uncertainty and endless difficulties. The 1955 Chevrolet was brought into Virginia in May of 1960, and was never registered under Virginia law until after the accident of December 30, 1960. From that time until the accident on December 30, 1960, the car was transferred by companies operating in Virginia under the laws of Virginia. To say that Virginia title law, passed specifically to effectively regulate the transfer of automobiles, could be avoided altogether by simply failing to ever register the automobile would seem to fly directly in the face of the clear purpose of the statute. We conclude, therefore, that Virginia’s automobile title laws are applicable in this case even though the Chevrolet was not registered in this State until after the accident in question. I. The Travelers Insurance Company We will now consider the question of The Travelers Insurance Company’s liability under their policy issued to Home Finance Company: The policy provides that liability coverage extends to “any person while using an owned automobile * * * provided the actual use is by the named insured or with his permission.” With respect to ownership of an automobile, the Virginia courts have taken a very strict view regarding the effect of noncompliance with State registration statutes on legal ownership. In Nationwide Insurance Company v. Storm, 200 Va. 526, 106 S.E.2d 588 (1959) the Supreme Court of Appeals of Virginia quoted with approval from the leading Ohio decision of Garlick v. McFarland, 159 Ohio St. 539, 113 N.E.2d 92, atp. 93 (1953): “Where an automobile is sold by the owner with full payment of the agreed price and delivery of possession to the purchaser thereof but the assignment and delivery of the certificate of title are deferred, a change in the ownership of the automobile is not consummated. * *- #» See also United States Fidelity & Guaranty Corp. v. Myers Motors, D.C., 143 F.Supp. 96 (1956); United States v. One Hudson Hornet Sedan, D.C., 110 F.Supp. 41 (1953); Sauls v. Thomas Andrews &" }, { "docid": "20967244", "title": "", "text": "to coverage. Under Definitions of Hazards the policy states: “Division 1. Premises — Operations —Automobiles “The ownership, maintenance or use of the premises for the purpose of an automobile sales agency, repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the ownership, maintenance or use of any automobile in connection with the above defined operations.” * * * (emphasis added) Under this provision it is further required that the automobile be used with the permission of the named insured. There is no question that Thomas Trussell had the express permission of Kanode Motor Company to operate the 1955 Chevrolet at the time of the accident. The real issue, then, is whether Trussell’s use of the non-owned automobile was in connection with the sales operations of Kanode Motor Company. The Court believes the Ohio case of Brewer v. Decant; Universal Underwriters Insurance Company, 167 Ohio St. 411, 149 N.E.2d 166 (1958) to be controlling on this issue. It should be noted at the outset that the Ohio registration statutes are very similar to Virginia’s. See Nationwide Insurance Co. v. Storm, supra. The facts of the Brewer decision are strikingly similar to the case at bar. There an auto dealer named Gingrich sold a car to one Armitage, obtaining a chattel mortgage executed in favor of a finance company to secure payment, and gave Armitage possession of the car and an endorsed certificate of title. When Armitage defaulted on his payments, the finance company repossessed the automobile without obtaining the title papers from Armitage. The finance company put the car back on the original seder s lot for resale, and Gingrich “sold” the car to DeCant. In return for possession of the car, DeCant traded Gingrich his old car, gave a mortgage on the new car, and executed a power of attorney authorizing Gingrich to get title for DeCant. Of course Gingrich did not have proper title at the time of the “sale” since ad title papers were still in Armitage’s possession. Shortly after this transaction DeCant had an accident, and it was" }, { "docid": "21469739", "title": "", "text": "is of no consequence. The testimony' at trial clearly established that a consumer in Kentucky does not have a perfected title in the automobile until the state verifies the information provided in the applications and sends the consumer a title through the mail. Oldfield claims that in Kentucky, ownership of the vehicle passes upon delivery of the automobile and accompanying documents to the purchaser. He claims that Kentucky is not a “certificate of title” state, and, therefore, possession of a new certificate of title is not essential to transfer ownership of an automobile. He relies upon the Kentucky Supreme Court’s decision in Motors Ins. Corp. v. Safeco Ins. Co., 412 S.W.2d 584 (Ky.1967), wherein the buyer of an automobile was involved in an automobile collision with his new car the evening after purchase, but before titling was complete. The Supreme Court held that under Kentucky’s version of the Uniform Commercial Code, title passed at the time and place of delivery and rejected the argument that the buyer was not the owner of the new automobile until the title papers had been delivered. Oldfield also relies upon Amburgey v. Potter, 477 S.W.2d 786 (Ky.1972), another insurance case, wherein the court held that compliance or noncompliance with the Kentucky statute requiring that the buyer obtain a new certificate of title is not conclusive of ownership and that the failure of the buyer to pick up the bill of sale until nine days after delivery of the car did not operate to continue the liability of the seller for the operation of the automobile by the buyer after delivery. In our view, however, the above two holdings are inapposite to the situation presented in this appeal. For the purposes of liability, title may pass from the car dealer to the purchaser at the time of purchase. However, while the purchaser may be liable for any injuries that he causes while using the automobile, he does not possess all the incidents of ownership until he obtains a certificate of title from the state. In the present case, even though title may have passed under" }, { "docid": "11222448", "title": "", "text": "are left only with the “chain-of-sale” argument that Cooper Wiring rejected as contrary to Ohio law. Although the Plaintiffs fail to cite any law to rebut Defendant Whirlpool’s argument, this Court notes that at least two cases have permitted indirect economic transactions in unjust enrichment cases. First, in Randleman v. Fidelity National Title Insurance Co., the court allowed the plaintiffs, who had refinanced their homes through various lenders, to maintain a claim for unjust enrichment against Fidelity, who allegedly overcharged those lenders for title insurance on the refinancing transactions. 465 F.Supp.2d 812, 823-25 (N.D.Ohio 2006). There, Fidelity argued that the plaintiffs had failed to claim that they directly conferred a benefit on it. Citing allegations in the complaint that the plaintiffs were “customers” of Fidelity and that the mortgage lenders passed the plaintiffs’ premium payments on to Fidelity, the court found that the plaintiffs had alleged a sufficient “transactional nexus” for an unjust enrichment claim. 465 F.Supp.2d at 825. Similarly, in Paikai v. General Motors Corp., the district court held that an Ohio plaintiff who had purchased a GM car from a GM dealer could state a claim for unjust enrichment against GM when he alleged various manufacturing defects in the car. No. CIV. S-07-892, 2009 WL 275761, at *5-6 (E.D.Cal. Feb. 5, 2009). Rejecting GM’s argument that the plaintiff must allege a “direct benefit,” the court held that Johnson merely stood for the proposition that a plaintiff must allege he had conferred “a benefit” on the defendant. 2009 WL 275761, at *5 (citing Johnson, 834 N.E.2d at 799). The court, noting that the plaintiff had purchased a GM car from an authorized GM dealer, largely relied on the plaintiffs allegations that GM had wrongfully denied warranty coverage on the vehicle. 2009 WL 275761, at *5. Thus, the court implicitly reasoned, GM had benefitted by retaining the funds it should have expended to repair the plaintiffs vehicle. Both Randleman and Paikai are distinguishable from this case. In Randleman, the plaintiffs alleged that they had essentially dealt with Fidelity, not the lender, and that the lender served merely as a middleman" }, { "docid": "14137166", "title": "", "text": "the creditor. In pertinent part, it states that the transfer of legal title to collateral to a secured party “is not of itself a disposition of collateral under this chapter and does not of itself relieve the secured party of its duties under this chapter.” Id. Clarifying the issue, the official comment states, “A secured party who has obtained ... legal title retains its duties ... and the debtor retains its rights as well.” Ohio Rev.Code Ann. § 1309.619 Official cmts. 2 (2000). Section 1309.619 was effective prior to the date of the repossession at issue, and there is no question that the Debtor retained ownership of the vehicle. Tidewater’s reliance upon Lewis is also misplaced. In that case, the Eleventh Circuit determined, notwithstanding the Alabama UCC effective in 1965, that Alabama continued to rely on the common law of conversion without reconciling the import of the Alabama UCC. The common law of conversion requires that upon a debtor’s default, title and right of possession pass to the creditor. In re Lewis, 137 F.3d at 1283-84. The common law of conversion was not addressed in Elliott, and Ohio’s state courts have relied upon the UCC rather than common law conversion. Tidewater also advances a Fourth Circuit Court of Appeals case, in which it was a party, in support of its arguments. Tidewater Finance Co. v. Moffett (In re Moffett), 356 F.3d 518 (4th Cir.2004). The facts in Moffett are similar to this case. Tidewater repossessed the debtor’s vehicle before the filing of her chapter 13 petition. When the debtor demanded the vehicle be returned, Tidewater responded by requesting relief from stay. Tidewater argued that its repossession stripped the debtor and the bankruptcy estate of any interest in the vehicle except bare legal title and an intangible right of redemption. The Fourth Circuit recognized that the issue concerning who holds legal ownership of the repossessed vehicle under Virginia law was “significant, as it determines whether Moffett had a legal as well as an equitable interest in the repossessed vehicle that became part of her bankruptcy estate.” Id. at 523. Citing Whiting" }, { "docid": "20967236", "title": "", "text": "“any person while using an owned automobile * * * provided the actual use is by the named insured or with his permission.” With respect to ownership of an automobile, the Virginia courts have taken a very strict view regarding the effect of noncompliance with State registration statutes on legal ownership. In Nationwide Insurance Company v. Storm, 200 Va. 526, 106 S.E.2d 588 (1959) the Supreme Court of Appeals of Virginia quoted with approval from the leading Ohio decision of Garlick v. McFarland, 159 Ohio St. 539, 113 N.E.2d 92, atp. 93 (1953): “Where an automobile is sold by the owner with full payment of the agreed price and delivery of possession to the purchaser thereof but the assignment and delivery of the certificate of title are deferred, a change in the ownership of the automobile is not consummated. * *- #» See also United States Fidelity & Guaranty Corp. v. Myers Motors, D.C., 143 F.Supp. 96 (1956); United States v. One Hudson Hornet Sedan, D.C., 110 F.Supp. 41 (1953); Sauls v. Thomas Andrews & Co., supra; Thomas v. Mullins, 153 Va. 383, 149 S.E. 494 (1929). Therefore, in most cases compliance with § 46.1-87 of the Code of Virginia (1950), as amended, et seq., is required in order to transfer ownership of an automobile in the State of Virginia. Home Finance, upon repossessing the Chevrolet from Eugene Bowman, did not so comply since the title papers properly endorsed were not obtained along with the car. Yet it is possible under the Virginia statute to acquire legal ownership by operation of law. § 46.1-93 of the Code of Virginia (1950), as amended, provides in part: “Transfer by operation of law.— * * * in the event of the transfer by operation of law of the title or interest of an owner in and to a motor vehicle * * * registered under the provisions of this chapter, to anyone * * * by * * * repossession upon default in the performing of the terms of a(n) * * * executory sales contract or otherwise than by the voluntary act" } ]

[ { "docid": "22731967", "title": "", "text": "burden to demonstrate that Rosa had retained “the functional capacity to perform a full range of sedentary work.” The ALJ found that the Commissioner met this burden and that the grids applied to preclude a finding of disability. The ALJ based her ruling upon two primary conclusions. First, she determined that the clinical observations and medical reports by Rosa’s treating physician, Dr. Ergas, did not support his assessment that Rosa was incapable of sitting and standing for extended periods over the course of a work day. Second, the ALJ concluded that the reports submitted by the two consulting physicians, Dr. Seo and Dr. Sarreal, were “consistent” with Rosa’s ability to meet the demands of sedentary employment. On appeal, plaintiff argues, among other things, that the ALJ lacked an adequate basis to permit either of these two conclusions and that the ALJ ignored evidence of a significant nonexertional impairment affecting Rosa’s ability to use and manipulate her right hand. A. The Treating Physician Rule The opinion of a treating physician is given controlling weight if it is well supported by medical findings and not inconsis tent with other substantial evidence. See Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998) (citing 20 C.F.R. § 404.1527(d)(2)); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993) (same). In analyzing a treating physician’s report, “the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir.1983); see also Balsamo, 142 F.3d at 80-81 (citing McBrayer); Wagner v. Secretary of Health and Human Servs., 906 F.2d 856, 862 (2d Cir.1990) (“[A] circumstantial critique by [a] non-physician[ ], however thorough or responsible, must be overwhelmingly compelling” to justify a denial of benefits). In this case, however, the ALJ did exactly that. In rejecting Dr. Ergas’s finding of disability, the ALJ emphasized that Dr. Er-gas “did not report findings of muscle spasm to corroborate any loss of motion.” By attaching such significance to this omission, however, the ALJ made fundamentally the same error as this Court has identified" } ]

[ { "docid": "21182244", "title": "", "text": "The Commissioner must accord special evidentiary weight to the opinion of the treating physician. See Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004); Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 119 (2d Cir.1998). The treating physician rule “mandates that the medical opinion of the claimant’s treating physician [be] given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence.” Shaw v. Chater; 221 F.3d 126, 134 (2d Cir.2000); see 20 C.F.R. § 404.1527(d)(2); Halloran, 362 F.3d at 31; Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Clark, 143 F.3d at 119. When the Commissioner chooses not to give the treating physician’s opinion controlling weight, the Commissioner must “give good reasons in his notice of determination or decision for the weight he gives [the claimant’s] treating source’s opinion.” Clark, 143 F.3d at 118 (quoting 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2)). In his determination of the level of deference to give the treating physician, the ALJ must consider the following factors: (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see Clark, 143 F.3d at 118. Failure to give good reasons is a ground for remand. Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir.1998). The plaintiff identifies Dr. Duca and Dr. Yentel as her treating physicians. The ALJ chose not to afford controlling weight or great weight to either Dr. Duca or Dr. Yentel’s opinion that the plaintiff was totally disabled. In the Court’s view, it was proper to do so. This is so, even though there is evidence in the administrative record that supports Dr. Duca’s and Dr. Yen-tel’s determination of disability. In particular, Dr. Hollis twice recommended to the plaintiff that she have surgery. Also Dr. Neuman reported that the plaintiffs pain was of a severity" }, { "docid": "12259441", "title": "", "text": "not supported by substantial evidence; and (4) the ALJ presented an improper hypothetical to the vocational expert and therefore, the Commissioner failed to sustain his burden at Step 5 of the sequential analysis. (Dkt. No. 9). B. Treating Physician Plaintiff alleges that the ALJ improperly discounted the opinions of plaintiffs treating physicians, Dr. Reiter and Dr. Peiris. Under the Regulations, a treating physician’s opinion is entitled to “controlling weight” when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993); see also Filoramo v. Apfel, 1999 WL 1011942, at *7 (E.D.N.Y.1999) (holding that the ALJ properly discounted the assessment of a treating physician as it was inconsistent with opinions of other treating and consulting physicians). The ALJ is required to accord special evidentiary weight to the opinion of the treating physician, as long as the treating physician’s opinion is supported by medically acceptable techniques, results from frequent examinations, and is supported by the administrative record. Schnetzler v. Astrue, 533 F.Supp.2d 272, 285 (E.D.N.Y.2008). An ALJ may refuse to consider the treating physician’s opinion controlling if he is able to set forth good reason for doing so. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y.1998). When an ALJ refuses to assign a treating physician’s opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including: (I) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration’s atten tion that tend to support or contradict the opinion. 20 C.F.R. 404.1527(d)(2). The opinion of the treating physician is not afforded controlling weight where the treating physician issued opinions that are not consistent with other substantial" }, { "docid": "8253039", "title": "", "text": "treatment relationship; (3) medical support for the opinion: (4) consistency; and (5) the physician’s specialization, along with any other relevant factors. 20 C.F.R. § 404.1527(d)(2). An ALJ’s failure to apply these factors and provide reasons for the weight given to the treating physician’s report is reversible error. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999); Schaal v. Apfel, 134 F.3d 496 (2d Cir.1998). The ALJ’s determination that Dr. Zeid-man’s opinion was not entitled to controlling weight failed to properly consider the relevant factors and is unsupported by the evidence of record. See 20 C.F.R. § 404.1527(d)(2). Dr. Zeidman had a well-established, ongoing and consistent treating relationship with plaintiff that included frequent examinations beginning with the spring 2003 motor vehicle accident and continuing through the date of plaintiffs initial application. Further, the record contains appreciable objective medical evidence to support Dr. Zeidman’s opinions concerning plaintiffs limitations, including multiple X-rays, CT scans, MRI scans, surgical records, and diagnoses and treatment notes from a number of other treating and examining physicians, all of which are substantially duplicative of Dr. Zeidman’s objective findings. Dr. Zeid-man is a board certified neurosurgeon, and as such, his expertise is specific to plaintiffs condition. See Bálsamo, 142 F.3d at 80-81 (ALJ erred by failing to accord controlling weight to treating physician’s opinions where there was no other medical opinion in the record that disputed their findings). While the ALJ correctly noted that Dr. Zeidman had not examined plaintiff after January 2005, rendering his opinion concerning plaintiffs condition during the final six months of the closed period somewhat speculative (Tr. 18), there is no evidence that plaintiff had improved, or was expected to improve, during that time. To the contrary, plaintiffs medical records variously described his prognosis as “poor” and “guarded.” (Tr. 328, 339). Moreover, while the ALJ was skeptical of the fact that plaintiff had improved sufficiently to perform nursing work at the medium exertional level within a year of Dr. Zeidman’s second assessment, the fact that plaintiff was physically able to return to work on June 6, 2005 does not, by itself, suggest that plaintiff" }, { "docid": "12314343", "title": "", "text": "new regulations for weighing the opinions of treating physicians in disability cases. See Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). Under these regulations, a treating physician’s opinion will be given controlling weight if the SSA finds that such opinion “is 'well-supported by medically accepted clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in a case record. 20 C.F.R. §§ 416.927(d)(2), 404.1527(d)(2). When a treating physician’s opinion is not given controlling weight under the 1991 regulations, the SSA must assess the following factors in determining how much weight to afford that opinion: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion’s consistency with the record as a whole; (4) whether the opinion is from a specialist; and (5) other relevant factors. Schaal, 134 F.3d at 503 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). Moreover, if an ALJ perceives inconsistencies in a treating physician’s reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record accordingly. Clark v. Commissioner of Social Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal, 134 F.3d at 505; Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). In this case, the parties do not dispute that the ALJ’s rejection of Dr. Lanzone’s opinion did not comport with the standards set forth above, thereby meriting at least a remand. (PI. Br. at 11; Def. Br. at 3.) The remaining issues are whether the record supports an award of benefits rather than a remand, and whether the ease, if remanded, should be assigned to a different ALJ. C. Remand or Award of Benefits “[Wjhen the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose,” it is appropriate for a court to reverse an ALJ’s decision and order the payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980). By contrast, “[wjhen there are gaps in the administrative record or the ALJ has applied an" }, { "docid": "12314342", "title": "", "text": "the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.” DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). In reviewing the Commissioner’s decision, I must decide whether his conclusions are supported by substantial evidence in the record and whether they were reached by the application of the proper legal standard. See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990) (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Pe- rales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Where substantial evidence supports the ALJ’s conclusions, this Court will not substitute its own judgment as to the facts. See Brown v. Bowen, 905 F.2d 632 (2d Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1064 (1991). B. The Opinions of Treating Physicians In 1991, the SSA promulgated new regulations for weighing the opinions of treating physicians in disability cases. See Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). Under these regulations, a treating physician’s opinion will be given controlling weight if the SSA finds that such opinion “is 'well-supported by medically accepted clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in a case record. 20 C.F.R. §§ 416.927(d)(2), 404.1527(d)(2). When a treating physician’s opinion is not given controlling weight under the 1991 regulations, the SSA must assess the following factors in determining how much weight to afford that opinion: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion’s consistency with the record as a whole; (4) whether the opinion is from a specialist; and (5) other relevant factors. Schaal, 134 F.3d at 503 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). Moreover, if an ALJ perceives inconsistencies in a treating physician’s reports, the ALJ bears an affirmative duty to seek" }, { "docid": "11636933", "title": "", "text": "in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm’r of Soc. Sec,, 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). In the present case, the ALJ did not afford controlling weight to Dr. Kang’s assessment. Rather, the ALJ concluded that Dr. Kang had relied exclusively on Plaintiffs subjective complaints, that his opinion was not supported by his treatment notes, and that his conclusions were contradicted by the balance of the evidence. (T at 15). Although this Court finds that the ALJ’s assessment of Dr. Kang’s opinion was flawed, the ALJ’s conclusion that Plaintiffs depressive disorder did not meet or equal Listing § 12.04 was supported by substantial evidence. The Listings define a “marked” limitation as means “more than moderate but less than extreme.” “A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C). For the reasons outlined below, substantial evidence supports the ALJ’s conclusion that Plaintiff did not have marked impairments as to at least two of the domains, as required under paragraph" }, { "docid": "22397442", "title": "", "text": "whole; and whether the physician is a specialist in the area covering the particular medical issues. Id. § 404.1527(d)(2)(i)-(ii), (3)-(5). See also id. § 404.1527(d) (same factors govern how much weight should be given to any medical opinion). We note that “[generally, the longer a treating source has treated [the claimant] and the more times [the claimant] ha[s] been seen by a treating source, the more weight [the Commissioner] will give to the source’s medical opinion,” id. § 404.1527(d)(2)(i)—contrary to Dr. Abeles’s suggestion that the opinion of Dr. Smith be discounted on the ground that “he is being influenced by seeing” Burgess “month [in] and month out” (ALJ Tr. 41). After considering the above factors, the ALJ must “comprehensively set forth [his] reasons for the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33; see 20 C.F.R. § 404.1527(d)(2) (stating that the agency “will always give good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s opinion” (emphasis added)). Failure to provide such “ ‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998) (“Commissioner’s failure to provide ‘good reasons’ for apparently affording no weight to the opinion of plaintiffs treating physician constituted legal error”). In the present case, we vacate and remand for further consideration because, given the evidence discussed in Part I.A.1. above as to the condition of Burgess’s back, the ALJ failed to give good reasons for not crediting Dr. Smith’s opinion that Burgess had a bulging disc “encroaching on the space that is normally there in the nerve root” (WCB Tr. 9), “effectively pinching that nerve each time [Burgess] moves” (id. at 11; see id. at 9 (“every time [Burgess] moves a certain way it drags that nerve root across the dis[c] material and is very painful”)). That opinion was given in light of the MRI Report on Burgess’s back, showing bulging disc material. Preliminarily, we note that" }, { "docid": "17483635", "title": "", "text": "source who provides [the claimant] ... with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502. Deference to such a medical provider is appropriate because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. § 404.1527(c)(2). A treating physician’s opinion is not always controlling. For example, a legal conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is not controlling,” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician’s statement that the claimant is disabled cannot itself be determinative.”). Additionally, where “the treating physician issued opinions that [were] not consistent with other substantial evidence in the record, such as the opinion of other medical experts, the treating physician’s opinion is not afforded controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted) (alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the treating physician’s] opinion is with the record as a whole, the less weight it will be given.”). Importantly, however, “[t]o the extent that [the] record is unclear, the Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative record’ before rejecting a treating physician’s diagnosis.” Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (discussing ALJ’s duty to seek additional information from treating physician if clinical findings are inadequate). As a result, “the ‘treating physician rule’ is inextricably linked to a broader duty to develop the record. Proper application of the rule ensures that the claimant’s" }, { "docid": "20061229", "title": "", "text": "opinion. See Shaw, 221 F.3d at 134; Clark, 143 F.3d at 118. These factors include: (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see Clark, 143 F.3d at 118. When the Commissioner chooses not to give the treating physician’s opinion controlling weight, he must “give good reasons in his notice of determination or decision for the weight [he] gives [the claimant’s] treating source’s opinion.” Clark, 143 F.3d at 118 (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)); see also, e.g., Perez v. Astrue, No. 07-cv-958(DLI), 2009 WL 2496585, at *8 (E.D.N.Y. Aug. 14, 2009) (“Even if [the treating physician’s] opinions do not merit controlling weight, the ALJ must explain what weight she gave those opinions and must articulate good reasons for not crediting the opinions of a claimant’s treating physician.”); Santiago v. Barnhart, 441 F.Supp.2d 620, 627 (S.D.N.Y.2006) (“Even if the treating physician’s opinion is contradicted by substantial evidence and is thus not controlling, it is still entitled to significant weight because the treating source is inherently more familiar with a claimant’s medical condition than are other sources.”). A failure by the Commissioner to provide “good reasons” for not crediting the opinion of a treating physician is a ground for remand. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999). b. Application In reaching his conclusion regarding plaintiffs ability to work, the ALJ relied primarily on the medical opinions of Dr. Skeene and Dr. Montorfano. In rejecting Dr. Goldman’s opinion, the ALJ stated: We have contrasted [Dr. Skeene’s] opinion to that of Dr. Goldman, who, as stated above, was seen at the request of claimant’s attorney. Therefore, Dr. Goldman’s findings are self-serving. Dr. Goldman disagreed with the findings of Dr. Skeene and noted that jobs requiring repetitive activities would be ruled out. When seen on January 15, 2008, the claimant indicated he had difficulty sitting more than 20-25" }, { "docid": "8253033", "title": "", "text": "evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.’ ” Schaal, 134 F.3d at 504 (quoting Johnson, 817 F.2d at 986). IV. Plaintiffs Alleged Disability I find that the Commissioner’s decision regarding plaintiffs disability is not supported by substantial evidence, and that the matter must be remanded for further proceedings. I agree with the plaintiff that the ALJ erred when weighing the opinion of plaintiffs treating physician with respect to his exertional limitations. Furthermore, the ALJ’s finding that there were jobs in the economy that plaintiff could perform with his limitations is not supported by substantial evidence. A. Treating Physician’s Opinion The ALJ erred by failing to give controlling weight to the opinion of plaintiffs treating neurosurgeon, Dr. Zeidman. It is well-settled that “the medical opinion of a claimant’s treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence.” Shaw, 221 F.3d at 134; see 20 C.F.R. § 404.1527(d)(2). In determining what weight to give a treating physician’s opinion, the Commissioner must consider: (1) the length, nature and extent of the treatment relationship; (2) the frequency of examination; (3) the evidence presented to support the treating physician’s opinion; (4) whether the opinion is consistent with the record as whole; and (5) whether the opinion is offered by a specialist. 20 C.F.R. § 404.1527(d). Further, the ALJ must articulate his reasons for assigning the weight that he does accord to a treating physician’s opinion. Shaw, 221 F.3d at 134; see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (“[fjailure to provide good reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.”) (internal quotations omitted). On December 29, 2004, Dr. Zeidman completed a lumbar spine impairment questionnaire. He diagnosed plaintiff with lumbar disc degeneration and cervical disc herniation with myelopathy. Plaintiffs prognosis was guarded. (Tr. 339). Plaintiff had a limited range of motion in the neck" }, { "docid": "8253038", "title": "", "text": "ALJ chose to rely instead upon the assessments of consulting physician Dr. Sirotenko, who found on July 16, 2004 that plaintiff was able to perform work so long as he had frequent opportunities to alternate between sitting, standing and walking, and was not required to lift objects beyond a moderate degree of physical exertion. (Tr. 17, 328). The ALJ also found support for her conclusions in the opinion of a state agency disability examiner, who although not a physician, opined that plaintiff could perform light work. (Tr. 17). Nonetheless, the ALJ cited no evidence of record to contradict Dr. Zeidman’s opinion. I find that the ALJ’s conclusion is not supported by substantial evidence. A treating physician’s opinion is entitled to controlling weight if it is well-supported by medical findings and not inconsistent with other substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999). If an ALJ opts not to afford controlling weight to the opinion of a treating physician, the ALJ must consider: (1) the examining relationship; (2) the extent of the treatment relationship; (3) medical support for the opinion: (4) consistency; and (5) the physician’s specialization, along with any other relevant factors. 20 C.F.R. § 404.1527(d)(2). An ALJ’s failure to apply these factors and provide reasons for the weight given to the treating physician’s report is reversible error. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999); Schaal v. Apfel, 134 F.3d 496 (2d Cir.1998). The ALJ’s determination that Dr. Zeid-man’s opinion was not entitled to controlling weight failed to properly consider the relevant factors and is unsupported by the evidence of record. See 20 C.F.R. § 404.1527(d)(2). Dr. Zeidman had a well-established, ongoing and consistent treating relationship with plaintiff that included frequent examinations beginning with the spring 2003 motor vehicle accident and continuing through the date of plaintiffs initial application. Further, the record contains appreciable objective medical evidence to support Dr. Zeidman’s opinions concerning plaintiffs limitations, including multiple X-rays, CT scans, MRI scans, surgical records, and diagnoses and treatment notes from a number of other treating and examining physicians, all of which are substantially" }, { "docid": "12735858", "title": "", "text": "567 (2d Cir.1993). If the opinion of the treating physician as to the nature and severity of the impairment is not “well-supported” by objective evidence, the obligation to give, controlling weight to a treating physician’s opinion is inapplicable. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). When controlling weight is not given to a treating physician’s medical opinion, the ALJ must consider various “factors” to determine how much weight to give the opinion, such as: (1) the length of the treatment relationship and frequency of the examination; (2) the nature and extent of the treatment relationship; (3) the extent to which the opinion is supported by medical and laboratory findings; (4) the physician’s .consistency with the record as a whole; and (5) whether the physician is a specialist. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Hallaran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). Furthermore, the ALJ must provide “good reasons” for not crediting the opinion of a plaintiffs treating physician. See 20 C.F.R. § 416.927(d)(2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998)). Here, the ALJ identified only Dr. Pilaster as the plaintiffs treating physician. In so doing, the ALJ totally failed to acknowledge Dr. Capello’s treatment of the plaintiff. Dr. Capello had treated Ro-sato since 1993, was the first physician to diagnose Rosato with vertigo in 1998, referred her to specialists, received continual reports from Rosato’s other treating physicians, and was treating the plaintiff at the time of the hearing in 2002, a period of nine years. After many years of examinations, Dr. Capello consistently reported that the plaintiff complained of intense episodes of vertigo. Moreover, Dr. Capello submitted a detailed letter summarizing his treatment of Rosato and concluded that the plaintiff was totally disabled. The ALJ failed to indicate what weight, if any, that he accorded to these aspects of Dr. Capello’s opinion. See Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993) (holding that the ALJ is required to articulate the weight that is given to treating doctor’s conclusions). The ALJ also failed to provide any" }, { "docid": "20843919", "title": "", "text": "10 pounds occasionally. (T at 324). In addition, Dr. DiGiovanni, a treating orthopedic specialist, opined that Plaintiff was limited to sedentary work in a July 2007 note. (T at 266). Dr. Kenny, another treating orthopedic specialist, indicated on several occasions that Plaintiff was totally disabled. (T at 284, 287, 289, 292, 294, 305, 309, 312). Plaintiff contends that the ALJ did not properly weigh these medical opinions when rendering his RFC determination. Under the “treating physician’s rule,” the ALJ must give controlling weight to the treating physician’s opinion when the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. 20 C.F.R. § 404.1527(d)(1) — (6); see also de Roman, 2008 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). In this case, the ALJ discussed the medical evidence, discounted the assessments of the treating physicians, and rendered a detailed, function-by-function assessment concerning Plaintiffs RFC. (T at 17-22). This Court finds the ALJ’s determination supported by substantial evidence, as outlined below. Plaintiff consulted Dr. Robert Mantica, an orthopedist, for pain management. In a February 2009 progress note, Dr. Manti-ca assessed that Plaintiff had “some type of soft tissue injury in his back.” (T at 387)." }, { "docid": "21815646", "title": "", "text": "177 F.3d 128, 134 (2d Cir.1999); accord Shrack v. Astrue, 608 F.Supp.2d 297, 302 (D.Conn.2009). Under the so-called “treating physician rule,” an ALJ generally must give “more weight to opinions” of a claimant’s treating physician when determining if the claimant is disabled. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ must accord “controlling weight” to a treating physician’s medical opinion as to the nature and severity of a claimant’s impairments if the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” Id. §§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not give controlling weight to a treating physician’s opinion, the ALJ must provide “good reasons” for the weight given to that opinion. Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir.2004) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998)) (internal quotation marks omitted). The regulations make clear that the SSA “will always give good reasons ... for the weight [they] give [a claimant’s] treating source’s opinion,” 20 C.F.R. § 404.1527(c)(2). Case law holds that “[f]ailure to provide ‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998)). Where the Appeals Council fails to appropriately consider new and material evidence in light of the treating physician rule, “the proper course for the reviewing court is to remand the case for reconsideration in light of the new evidence.” Shrack, 608 F.Supp.2d at 302 (citing Milano v. Apfel, 98 F.Supp.2d 209, 216 (D.Conn. 2000)); accord Collazo v. Colvin, 2015 WL 9690324, at *13 (S.D.N.Y. Dec. 22, 2015) (noting that “the Appeals Council is bound by the treating physician rule,” and that the Council’s boilerplate denial failed to satisfy the regulation’s requirement that the Commissioner give good reasons for rejecting such an opinion); Lebow v. Astrue, 2015 WL 1408865, at *6-7 (S.D.N.Y. Mar. 9, 2015) (same); La Torre v. Colvin, 2015 WL 321881, at *13 (S.D.N.Y. Jan. 26, 2015) (same). Here," }, { "docid": "4962399", "title": "", "text": "that] determination] based upon limited contact and follow up”. (T. 269). Ms. Shahinien estimated plaintiffs work ability as “fair”. (T. 269). 2. Treating Physician Rule Under the Regulations, a treating physician’s opinion is entitled to “controlling weight” when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78-79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). An ALJ may refuse to consider the treating physician’s opinion controlling only if he is able to set forth good reason for doing so. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y.1998). “Failure to provide ‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for remand.” Peralta v. Barnhart, 2005 WL 1527669, at *10 (E.D.N.Y.2005) (remanding case where the ALJ failed to explain the weight, if any, assigned to the treating physician’s opinions) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999)). The opinion of a treating physician is not afforded controlling weight where the treating physician’s opinion contradicts other substantial evidence in the record, such as the opinions of other medical experts. Williams v. Comm’r of Soc. Sec., 236 Fed.Appx. 641, 643-44 (2d Cir.2007); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002) (citing 20 C.F.R. § 404.1527(d)(2)). The less consistent an opinion is with the record as a whole, the less weight it is to be given. Stevens v. Barnhart, 473 F.Supp.2d 357, 362 (N.D.N.Y.2007); see also Otts v. Comm’r of Soc. Sec., 249 Fed. Appx. 887, 889 (2d Cir.2007) (an ALJ may reject such an opinion of a treating physician “upon the identification of good reasons, such as substantial contradictory evidence in the record”). When an ALJ refuses to assign a treating physician’s opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including: (i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii)" }, { "docid": "12521634", "title": "", "text": "felt more clarification was needed. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999) (holding ALJ has an affirmative duty to develop the record). Moreover, if, in finding that Plaintiffs cerebral palsy failed to meet the requirements of the Listing of Impairments, the ALJ failed to give Dr. Brennen’s opinion that Plaintiff has “spasticity of [his] legs,” and walks with “bent, spastic legs, slowly and with great effort,” (R. 260) controlling weight, the ALJ was then required to provide “good reason” for not granting such opinion controlling weight. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998)). Generally, the Commissioner grants the opinion of a treating physician controlling weight only if the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record, such as the opinions of other medical experts. 20 C.F.R. § 404.1527(d); Halloran v. Barnhart, 362 F.3d 28, 31-31 (2d Cir.2004) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993)). Although a treating physician’s opinion is to be given controlling weight provided it is supported by medically acceptable techniques and results from frequent examinations, Schisler, supra, at 567; 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d), such opinion will not be deemed controlling “[w]hen other substantial evidence in the record conflicts with the treating physician’s opinion.” Snell, supra, at 133. Also, some determinations, including the ultimate finding of disability, are specifically “reserved to the Commissioner.” Snell, supra (quoting 20 C.F.R. § 404.1527(e)(1)). A treating physician’s statement that a claimant is disabled is, therefore, not determinative by itself. Snell, supra. Nevertheless, the regulations require an explanation of the weight given a treating physician’s opinion and the failure to provide “good reason” for not crediting such an opinion is a ground for remand. Snell, supra (citing Schaal, supra, at 505). Thus, although the ultimate issue of disability is reserved to the Commissioner, relieving the Commissioner of having to credit a treating physician’s finding of disability, the administrative" }, { "docid": "11636932", "title": "", "text": "marked limitations as to all three domains of functioning. Plaintiff’s argument in this regard is based primarily upon the assessment of Dr. Kang, his treating psychiatrist. In February of 2009, Dr. Kang completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental), in which he opined that Plaintiff had a marked limitation with regard to understanding and remembering simple instructions and a moderate limitation in terms of carrying out simple instructions and making judgments on simple work-related decisions. (T at 299). Dr. Kang further concluded that Plaintiff had a marked limitation in terms of interacting appropriately with the public and co-workers; a marked limitation with respect to responding appropriately to usual work situations and to changes in a routine work setting; and a moderate impairment with regard to interacting appropriately with supervisors. (T at 300). Under the “treating physician’s rule,” the ALJ must give controlling weight to the treating physician’s opinion when the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm’r of Soc. Sec,, 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). In the present case, the ALJ did not afford controlling weight to Dr." }, { "docid": "22389841", "title": "", "text": "informative and were not consistent with those of several other medical experts. Thus, Dr. Elliott’s opinion as the treating physician does not sustain controlling weight. An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various “factors” to determine how much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those factors are: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (in) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration’s attention that tend to support or contradict the opinion. Id. The regulations also specify that the Commissioner “will always give good reasons in [her] notice of determination or decision for the weight [she] give[s] [claimant’s] treating source’s opinion.” Id; accord 20 C.F.R. § 416.927(d)(2); see also School, 134 F.3d at 503-504 (stating that the Commissioner must provide a claimant with “good reasons” for the lack of weight attributed to a treating physician’s opinion). Applying these regulations and principles, we deduce that the ALJ considered the treating physician’s opinion and explained the consistency of Dr. Elliott’s opinion “with the record as a whole.” 20 C.F.R. § 404.1527(d)(4). The ALJ noted that many findings in Dr. Rogers’ opinion, including inter alia, that Halloran could lift and carry up to ten pounds, accorded with the findings in Dr. Elliott’s March 1999 opinion. The ALJ also explained that the two key findings made by Dr. Elliott— [i] the relatively uninformative response to a multiple-choice question about Halloran’s ability to sit and, [ii] the conclusory finding that Halloran was unable to perform her previous job duties — did not “address the question of whether [Halloran] could do the job if given several breaks or allowed to change position often.” This strikes us as a “factorf ] ... which tend[ed] to support or contradict the [treating physician’s] opinion.” 20 C.F.R. § 404.1527(d)(6); see also Snell v. Apfel, 177" }, { "docid": "12735857", "title": "", "text": "the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts, (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). C. Analysis 1.. The Treating Physician Rule The ALJ is required to accord special evidentiary weight to the opinion of the treating physician, as long as the treating physician’s opinion is supported by medically acceptable techniques, results from frequent examinations, and the administrative record. See Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir.1998). The “treating physician rule,” as it is known, “mandates that the medical opinion of the claimant’s treating physician [be] given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence.” Shaw v. Chater; 221 F.3d 126, 134 (2d Cir.2000); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Clark, 143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). If the opinion of the treating physician as to the nature and severity of the impairment is not “well-supported” by objective evidence, the obligation to give, controlling weight to a treating physician’s opinion is inapplicable. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). When controlling weight is not given to a treating physician’s medical opinion, the ALJ must consider various “factors” to determine how much weight to give the opinion, such as: (1) the length of the treatment relationship and frequency of the examination; (2) the nature and extent of the treatment relationship; (3) the extent to which the opinion is supported by medical and laboratory findings; (4) the physician’s .consistency with the record as a whole; and (5) whether the physician is a specialist. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Hallaran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). Furthermore, the ALJ must provide “good reasons” for not crediting the opinion of a plaintiffs treating physician. See 20 C.F.R. § 416.927(d)(2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (citing" }, { "docid": "22389842", "title": "", "text": "a claimant with “good reasons” for the lack of weight attributed to a treating physician’s opinion). Applying these regulations and principles, we deduce that the ALJ considered the treating physician’s opinion and explained the consistency of Dr. Elliott’s opinion “with the record as a whole.” 20 C.F.R. § 404.1527(d)(4). The ALJ noted that many findings in Dr. Rogers’ opinion, including inter alia, that Halloran could lift and carry up to ten pounds, accorded with the findings in Dr. Elliott’s March 1999 opinion. The ALJ also explained that the two key findings made by Dr. Elliott— [i] the relatively uninformative response to a multiple-choice question about Halloran’s ability to sit and, [ii] the conclusory finding that Halloran was unable to perform her previous job duties — did not “address the question of whether [Halloran] could do the job if given several breaks or allowed to change position often.” This strikes us as a “factorf ] ... which tend[ed] to support or contradict the [treating physician’s] opinion.” 20 C.F.R. § 404.1527(d)(6); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (stating that the “ultimate finding of whether a claimant is disabled and cannot work [is] ‘reserved to the Commissioner’ ”) (quoting 20 C.F.R. § 404.1527(e)(1)). After carefully considering the entire record and the ALJ’s opinion, we conclude that the ALJ applied the substance of the treating physician rule. However, we emphasize that under the regulations, see 20 C.F.R. § 404.1527(d)(2), the Commissioner is required to provide “good reasons” for the weight she gives to the treating source’s opinion. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998). This requirement greatly assists our review of the Commissioner’s decision and “let[s] claimants understand the disposition of their cases.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999). We do not hesitate to remand when the Commissioner has not provided “good reasons” for the weight given to a treating physicians opinion and we will continue remanding when we encounter. opinions from ALJ’s that do not comprehensively set forth reasons for the weight assigned to a treating physician’s opinion. Ill Halloran contends that" } ]

[ { "docid": "5823892", "title": "", "text": "Disney World under an agreement with Nestle. II. THE TEST FOR GENERICNESS Section 14(c) of the Lanham Act, 15 U.S.C. § 1064(c), provides for the cancellation of a trademark if “at any time [it] becomes the common descriptive name of an article or substance.” Courts commonly label such terms generic. See, e.g., Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976). It is helpful to keep in mind some of the basic principles of trademark law. While many associations may be invoked by a word, the only one which is of any significance as a trademark is its use in denoting the source of the product it labels. See Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 304 (9th Cir.1979) (Anti-Monopoly I). “Source identification is the only word function which trademark law is designed to protect.” Id. Trademarks enable buyers to differentiate between goods and services by their source, thus rewarding the producer who provides consistent quality. Used as a means of identifying the trademark owner’s products, a trademark “makes effective competition possible in a complex, impersonal marketplace by providing a means through which the consumer can identify products which please him and reward the producer with continued patronage.” ... Moreover, once this goodwill is established, trademarks become an extremely important medium of advertisement. Provided that the public continues to understand the trademark term primarily as a source identifier, the particular producer is exclusively entitled to benefits flowing from the mark’s sales appeal. ... But all of these legitimate trademark purposes derive ultimately from the mark’s representation of a single fact: the product’s source. It is the source-denoting function which trademark laws protect, and nothing more. Id. at 301 (footnote omitted, emphasis added) (quoting Smith v. Chanel, Inc., 402 F.2d 562, 566 (9th Cir.1968). It follows from this that “[i]f the primary significance of the trademark is to describe the type of product rather than the producer, the trademark has become a generic term and is no longer a valid trademark.” Anti-Monopoly I, 611 F.2d at 304. Thus, “no matter how much money" } ]

[ { "docid": "4140416", "title": "", "text": "1975); McCarthy, supra. A generic term is one which is commonly used as the name or description of a kind of goods. Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 S.Ct. 752 (1978). It is a term that refers, or has come to be understood as referring, to the genus of which the particular product is a species. Abercrombie & Fitch v. Hunting World, 537 F.2d at 9. The reason for precluding appropriation of such common descriptive terms is clear: “to allow trademark protection for generic terms, i. e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods or what they are.” CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d at 13; Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d at 80. In determining whether the title of a periodical is a valid trademark, the same tests must be met as in the case of goods. CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d at 14. In that case, Judge Friendly, writing for the panel, held that the name “Consumer Electronics Monthly” was generic when used as the title of a trade magazine. The magazine was distributed free of charge to manufacturers, distributors and dealers in the consumer electronics trade, and its title had been registered on the Patent Office’s Supplemental Register. Judge Friendly distinguished those decisions in which magazine names were found descriptive, but not generic, as cases not involving a trade magazine whose title was a word which named not only a class of goods but a class of magazines devoted to displaying and discussing those goods. In Judge Friendly’s words, “it is hard to think of a name for a magazine, directed deliberately and effectively to industry personnel, which more accurately names the class of trade magazines within that industry than one which simply gives itself the name" }, { "docid": "15441100", "title": "", "text": "King-Seeley Thermos Co. v. Aladdin Industries, Inc., 321 F.2d 577, 579 (2 Cir. 1963). The test was sharpened by the Supreme Court in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). “. . . [T]o establish a trade name ... the plaintiff must show more than a subordinate meaning which applies to it. It must show that the primary significance of the term in the minds of the consuming public is not the product but the producer.” 305 U.S. at 118, 59 S.Ct. at 113 [emphasis added]. In J. Kohnstam, Ltd. v. Louis Marx and Company, Inc., 280 F.2d 437, 440, 47 CCPA 1080, 1084 (1960), the court held that the trademark “Matchbox Series”, as applied to toys packaged in small boxes was descriptive rather than indicative of origin, and was not registrable. The court concluded that even if the applicant for registration had by advertising over a period of some two and one-half years developed a secondary meaning as indicating the origin of the goods, such circumstance could not “take the common descriptive name of an article out of the public domain and give the temporarily exclusive user of it exclusive rights to it, no matter how much money or effort it pours into promoting the sale of the merchandise”. See also CES Pub. Corp. v. St. Regis Publications, Inc., 531 F.2d 11 (2 Cir. 1975), where the court held that the term “Consumer Electronics”, as used in the title of a trade magazine within the electronics industry, was generic, and not subject to trademark protection. The court held further that unlike “merely descriptive” terms which can be registered as trademarks by proof of secondary meaning, a “generic” word cannot be validly registered as a trademark even if there is proof of secondary meaning. “The reason is plain enough. To allow trademark protection for generic terms, i. e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not" }, { "docid": "19850679", "title": "", "text": "Cosmetics, Inc., 76 F.3d 743, 748 (6th Cir.1996) (internal quotation marks omitted). “If a mark’s primary significance is to describe a type of product rather than the producer, it is generic.... ” Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 404 (6th. Cir.2002). A generic mark cannot be protected as a trademark. Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 513 (6th Cir.2007). McGill argues that “Seventh-day Adventism” refers to a religion, is therefore a generic term, and thus cannot be trademarked. McGill’s argument is certainly logical: well-known terms that society understands to refer to a particular faith in general are generic, and no single party can prevent others from using them. See, e.g., Christian Science Bd. of Dirs. of the First Church of Christ, Scientist v. Evans, 105 N.J. 297, 520 A.2d 1347, 1352-53 (1987) (“Christian Science” is a religion and therefore a generic name not entitled to trademark); McDaniel v. Mirza Ahmad Sohrab, 27 N.Y.S.2d 525, 527 (N.Y.Sup.Ct.1941) (holding that Baha'ism is a religion and that the use of word “Baha'i” could not be enjoined because “members of the same religion[ ] have an equal right to use the name of the religion”); New Thought Church v. Chapin, 159 A.D. 723, 724-25, 144 N.Y.S. 1026 (N.Y.App.Div.1913) (denying injunction because plaintiffs claimed that “New Thought” referred to a religion and they could not “claim a monopoly of teaching this form of religious faith”); cf. TE-TA-MA Truth Found.-Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662, 666 (7th Cir.2002) (“Church of the Creator” describes a Christian denomination, not a religion, and is not generic); Nat’l Spiritual Assembly of the Baha’is Under the Hereditary Guardian ship, Inc. v. Nat’l Spiritual Assembly of the Baha’is, Inc., 150 U.S.P.Q. 346, 354 (N.D.Ill.1966) (enjoining defendants’ use of “Baha'i” because “the public has come to recognize the designation! ] ‘Baha'i’ ... as identifying the [plaintiff organization] and the Baha'i Faith as administered by [it]”). This circuit has held that “Whether a name is generic is a question of fact.” Bath & Body Works, 76 F.3d at 748." }, { "docid": "5493511", "title": "", "text": "trademark. Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901 (7th Cir.1983); CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 15 (2d Cir.1975). To allow a producer of goods to usurp a generic term as a protect-able trademark would prevent competitors from describing their own goods adequately. Thus, even when a generic term has developed a secondary meaning it is unprotectable as a trademark. Miller Brewing Co. v. Falstaff Corp., 655 F.2d 5, 8 (1st Cir.1981); CES Publishing Corp., 531 F.2d at 13. Plaintiff, as claimant to protection for an unregistered mark, bears the burden of proving that “Software News” is not generic. National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478, 488 (7th Cir.1982); Reese Publishing Co. v. Hampton International Communications, Inc., 620 F.2d 7, 11 (2d Cir.1980). Plaintiff is not aided in this task by defendant’s attempt to register “Computer + Software News” as a federal trademark. Gimix, Inc., 699 F.2d at 905 n. 3. The district court in denying the preliminary injunction determined only that the word “software,” in and of itself, is generic, presumably because it is the common descriptive term for programs, procedures, and related documentation associated with a computer system. See Webster’s Collegiate Dictionary, 1104 (1975). As plaintiff correctly points out, this analysis was in error. Plaintiff’s mark is “Software News,” not “Software.” The proper analysis considers plaintiff's mark as a whole. Reese Publishing Co., 620 F.2d at 11. The issue, when properly framed, is whether “Software News” is generic when applied to a magazine dealing with the software industry. A generic term is one that serves as the common descriptive name of the product. The test in determining whether a magazine title is generic is no different than that applied in determining whether any other mark is generic. Magazines differ from other goods, however, in that their title is a primary means of conveying their content. The result is that many magazine titles fall near the line between generic and descriptive marks. In recognition of this “[cjourts have been reluctant to find a magazine" }, { "docid": "23528650", "title": "", "text": "that particular products or services emanate from a reliable though often anonymous source; (c) aid consumers in the selection process by denoting a level of quality relating to particular goods or services: (d) symbolize the reputation and good will of the owner, thereby motivating consumers to purchase or avoid certain trademarked products or services; and (e) protect the public from confusion or deception by enabling purchasers to identify and obtain desired goods or services. S.Rep. at 2, U.S.Code Cong. & Admin.News 1984, at 5718, 5719 (quoting the Chairman of the United States Trademark Association’s Federal Legislation Committee). Courts and commentators try to capture all of these interests in the oft-repeated statement that trademarks serve to prevent consumer confusion. See, e.g., Scott Paper, 589 F.2d at 1228 (“The trademark laws exist not to ‘protect trademarks, but ... to protect the consuming public from confusion, concomitantly protecting the trademark owner’s right to a non-confused public.’ ”); McCarthy, supra, at § 2:3 (“Today, the keystone of that portion of unfair competition law which relates to trademarks is the avoidance of a likelihood of confusion in the minds of the buying public.”). Underlying the genericness doctrine is the principle that some terms so directly signify the nature of the product that interests of competition demand that other producers be able to use them even if terms have or might become identified with a source and so acquire “de facto” secondary meaning. See, e.g., CES Pub. Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir.1975) (Friendly, J.) (“To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.”). Courts refuse to protect a generic term because competitors need it more to describe their goods than the claimed markholder needs it to distinguish its goods from others. In essence, this kind of genericness requires courts to balance different kinds of confusion. If only one manufacturer can" }, { "docid": "9984779", "title": "", "text": "v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 640 n. 14 (6th Cir.2002) (citations omitted). Merely descriptive marks that have been registered federally and that have become incontestable pursuant to 15 U.S.C. § 1065 are presumed to have acquired a secondary meaning. See Nartron, 305 F.3d at 404 n. 7. .\"A generic term is one that is commonly used as the name of a kind of goods. Unlike a trademark, which identifies the source of a product, a generic term merely identifies the genus of which a particular product is a species. If a mark's primary significance is to describe a type of product rather than the producer, it is generic and is not a valid trademark.” Nartron, 305 F.3d at 404 (internal quotation marks and citations omitted). . The district court’s oral ruling on the question of the TUMBLEBUS mark’s distinctiveness is admittedly a bit opaque; however, based on the district court's reference to actual use and its characterization of the mark as “unique,” we conclude that the district court classified TUMBLEBUS as a suggestive mark, and not one that is merely descriptive. J.A. at 570-71. . Cranmer also appears to suggest that TUMBLEBUS has become generic through the sale of Tumblebuses across the country, such that the term TUMBLEBUS has become synonymous with the provision of mobile-gymnastics services. See Duncan, Inc. v. Royal Tops Mfg. Co., 343 F.2d 655, 667 (7th Cir.1965) (collecting cases involving such terms as “aspirin” and \"cola” that have been victims of \"genericide,” a process by which terms lose their significance as indicators of origin as a result of widespread public usage). The evidentiary record before us, however, provides little guidance as to any evolving public understanding of the term TUMBLE-BUS, and thus we cannot conclude at this time that the term TUMBLEBUS has become generic. . In raising this argument, Cranmer places much emphasis on Professor McCarthy's oft-repeated phrase that \"abandonment opens rights to the whole world.” 2 McCarthy on Trademarks § 17:1. Cranmer's reliance on this phrase, however, is misplaced because it takes the phrase out of context and, as a result," }, { "docid": "2359626", "title": "", "text": "distinctions are critical to the availability and the evidentiary requirements of registration. Generic terms, by definition incapable of indicating source, are the antithesis of trademarks, and can never attain trademark status. Dan Robbins & Associates, Inc. v. Questor Corp., 599 F.2d 1009, 1014, 202 USPQ 100, 105 (CCPA 1979). The reason is plain: To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are. CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13, 188 USPQ 612, 615 (2d Cir.1975). In contrast, “merely descriptive” terms are capable of acquiring, in the view of the consuming public, an association with the source of the goods or services; that is, a secondary meaning in accord with 15 U.S.C. § 1052(f). See Roselux Chemical Co. v. Parsons Ammonia Co., 299 F.2d 855, 862, 132 USPQ 627, 633 (CCPA 1962) (“Distinctiveness means that the primary meaning of the word ... is as a designation of source rather than of a characteristic of the product.”) (emphasis in original). Whether a term is classified as “generic” or as “merely descriptive” is not easy to discern when the term sits at the fuzzy boundary between these classifications. See Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 790, 217 USPQ 988, 993 (5th Cir.1983) (“[t]he labels are more advisory than definitional, more like guidelines than pigeonholes”). It is basic to the inquiry to determine whether members of the relevant public primarily use or understand the term to refer to the genus of goods or services. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed.Cir.1986). As the court said in In re Automatic Radio Manufacturing Co., 404 F.2d 1391, 1396, 160 USPQ 233, 237 (CCPA 1969): It seems elementary that one must find out how people in the trade and the pur chasers use the terms with" }, { "docid": "19850678", "title": "", "text": "the Hankins decision “unsound” and explaining that “RFRA is applicable only to suits to which the government is a party”); Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir.2000) (“It seems unlikely that the government action Congress envisioned in adopting RFRA included the protection of intellectual property rights against unauthorized appropria tion.\"); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834, 837-43 (9th Cir.1999) (noting that Congress did not specify that RFRA applies to nongovernmental actors, as it typically does when intending to regulate private parties, and holding that private parties could not be considered state actors under RFRA unless they acted jointly with government officials to violate free-exercise rights). We now join them ranks. C. Whether “Seventh-day Adventism” Can Be Trademarked “The existence and extent of trademark protection for a particular term depends on that term’s inherent distinctiveness. Courts have identified four general categories of terms: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful.” Bath & Body Works, Inc. v. Luzier Personalized Cosmetics, Inc., 76 F.3d 743, 748 (6th Cir.1996) (internal quotation marks omitted). “If a mark’s primary significance is to describe a type of product rather than the producer, it is generic.... ” Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 404 (6th. Cir.2002). A generic mark cannot be protected as a trademark. Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 513 (6th Cir.2007). McGill argues that “Seventh-day Adventism” refers to a religion, is therefore a generic term, and thus cannot be trademarked. McGill’s argument is certainly logical: well-known terms that society understands to refer to a particular faith in general are generic, and no single party can prevent others from using them. See, e.g., Christian Science Bd. of Dirs. of the First Church of Christ, Scientist v. Evans, 105 N.J. 297, 520 A.2d 1347, 1352-53 (1987) (“Christian Science” is a religion and therefore a generic name not entitled to trademark); McDaniel v. Mirza Ahmad Sohrab, 27 N.Y.S.2d 525, 527 (N.Y.Sup.Ct.1941) (holding that Baha'ism is a religion and that the use of" }, { "docid": "19913258", "title": "", "text": "judgment should be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Because the PTO denied Schwan’s application to register the Brick Oven mark, there is no presumption of the mark’s validity, and Schwan’s bears the burden of establishing that the mark is protectible under trademark law. See id. Schwan’s contends that the district court erred in granting summary judgment on its trademark infringement action because there is a genuine issue of material fact regarding whether the Brick Oven mark is distinctive. To determine whether a mark is distinctive and thus entitled to trademark protection, we must first categorize it as generic, descriptive, suggestive, or arbitrary. Id. at 1004 (citing Co-Rect Prods., Inc. v. Marvy! Adver. Photography, Inc., 780 F.2d 1324, 1329 (8th Cir.1985)). Generic and descriptive marks are generally not protectible. Suggestive and arbitrary marks are inherently distinctive and protectible. Frosty Treats, Inc., 426 F.3d at 1005. The crucial inquiry in this case is whether Brick Oven is generic or descriptive. A generic term can never function as a trademark because it refers to the common name or nature of the article. Id. A generic term does not identify the source of a product, but rather indicates the basic nature of the product. See id. “Because a generic term denotes the thing itself, it cannot be appropriated by one party from the public domain; it therefore is not afforded trademark protection even if it becomes associated with only one source,” Blinded Veterans Ass’n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1039 (D.C.Cir.1989), for a competitor must be able to “describe his goods as what they are.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 1569 (Fed.Cir.1987) (quoting CES Publ’g Corp. v. St. Regis Publ’ns, Inc., 531 F.2d 11, 13 (2nd Cir.1975)). Likewise, descriptive terms are generally not protectible because" }, { "docid": "19913260", "title": "", "text": "they are needed to describe all goods of a similar nature. Such a term describes the ingredients, characteristics, qualities, or other features of the product and may be used as a trademark only if it has acquired a secondary meaning. Id.; Co-Rect Prods., Inc, 780 F.2d at 1329. To be afforded protection, then, a descriptive term must be so associated with the product that it becomes a designation of the source rather than of a characteristic of the product. In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d at 1569. In the present case, if the primary significance of Brick Oven is to identify the product, and not to identify the source of that product, there can be no infringement action. See Nartron Corp. v. STMicroelectronics, Inc. 305 F.3d 397, 405 (6th Cir.2002); Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986). In deciding genericness, evidence of the relevant public’s understanding of a term “may be obtained from any competent source.” In re Merrill Lynch. Pierce, Fenner, & Smith. Inc., 828 F.2d at 1570. Accordingly, Kraft may properly establish that Brick Oven is generic with evidence such as “newspapers and other publications, generic use by competitors, generic use of the term by the [party bringing suit], and use of the term by third parties in trademark registrations.” Nar-tron Corp., 305 F.3d at 406. We conclude that summary judgment was appropriate and that the district court correctly held that Brick Oven, as used to identify pizza, is a generic term. Indeed, as Tom Bierbaum, Schwan’s longtime head of the Freschetta brand, confirmed, Brick Oven pizza is “a pizza that is cooked in a brick oven.” Kraft App. at 271. Schwan’s trademark application supports this definition, stating that Brick Oven is a type of pizza that “mimics the nature of a hand made, brick-oven baked product,” and Schwan’s has certified to the U.S. Department of Agriculture that it bakes the Freschetta Brick Oven crust in a “direct-fire brick oven.” Schwan’s App. at 61, 377. Commentators and retailers within the frozen pizza industry also use the term" }, { "docid": "23528651", "title": "", "text": "avoidance of a likelihood of confusion in the minds of the buying public.”). Underlying the genericness doctrine is the principle that some terms so directly signify the nature of the product that interests of competition demand that other producers be able to use them even if terms have or might become identified with a source and so acquire “de facto” secondary meaning. See, e.g., CES Pub. Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir.1975) (Friendly, J.) (“To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.”). Courts refuse to protect a generic term because competitors need it more to describe their goods than the claimed markholder needs it to distinguish its goods from others. In essence, this kind of genericness requires courts to balance different kinds of confusion. If only one manufacturer can use a designation for which there is no common alternative, buyers may be confused by their ignorance that other goods possess the characteristics they seek. If a particular designation is available to all, however, customers who believe that only one manufacturer makes a product with that name may be misled into buying the goods of others, at least in the short run, and may face disappointment because these alternatives differ in subtle characteristics from the brand they wished to buy. See Altman, Callman Unfair Competition, Trademarks & Monopolies § 18.03 (4th ed. 1983) (“The competitor’s right to use words of common speech is bounded by the limits of necessity. The need of competitors to use the word will be balanced against the need of the first claimant to that particular word.”) (hereinafter Callman). The doctrine of genericness reflects the Congressional determination that the interest in preventing the second kind of confusion does not normally justify creating the first, in large part because producers may identify their goods through the use of terms that are not" }, { "docid": "23005831", "title": "", "text": "test, whether a product brand with a name used by one producer constitutes its own genus must turn on the extent to which the brand name communicates functional characteristics that differentiate the brand from the products of other producers. In making these calculations, consumer understanding will determine the extent to which a term communicates functional characteristics and the significance of a term’s role in doing so because of a dearth or abundance of alternative terms that effectively communicate the same functional information. Id. With these principles in mind, the Canfield court, relying on our decision in CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir.1975) (“To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.”), promulgated a test to determine if a new product name must be deemed also to refer to a product genus or type, rather than simply to an individual product brand: If a producer introduces a product that differs from an established product class in a particular characteristic, and uses a common descriptive term of that characteristic as the name of the product, then the product should be considered its own genus. Whether the term that identifies the product is generic then depends on the competitors’ need to use it. At the least, if no commonly used alternative effectively communicates the same functional information, the term that denotes the product is generic. If we held otherwise, a grant of trademark status could effectively prevent a competitor from marketing a product with the same characteristic despite its right to do so under the patent laws. Canfield, 808 F.2d at 305-06 (citation and footnote omitted). We adopt that test today, and conclude that Canfield is based on longstanding and integral principles of trademark law. As such, it is a useful complement to, rather than a rejection of, the primary significance test. The case before us" }, { "docid": "7200045", "title": "", "text": "opinion. Moreover, even were the consumer survey evidence irrelevant to whether the term “air door” was generic in 1962, it would be relevant to whether the term is now gener ic, an issue not currently before us but one that will be before the district court on remand. IV. For the foregoing reasons, we will reverse the district court’s summary judgment and injunction order and remand for proceedings consistent with this opinion. . Both parties concede that a particular product may be described by more than one generic name. . We are mindful that these categories are less than clearly defined and may be difficult to utilize. \"These categories, like the tones in a spectrum, tend to blur at the edges and merge together. The labels are more advisory than definitional, more like guidelines than pigeon holes. Not surprisingly, they are somewhat difficult to articulate and apply.” Blinded Veterans Ass’n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1039 (D.C.Cir.1989) (quoting Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 790 (5th Cir.1983)). . The primary significance test has its origin in the case of Bayer Co. v. United Drug Co., 272 F. 505, 509 (S.D.N.Y.1921), in which Judge Learned Hand held the term ASPIRIN to be generic. The court stated, \"[t]he single question as I view it, in all these cases is merely one of fact: what do buyers understand by the word for whose use the parties are contending?” Id. The primary significance test includes evaluating both the object and subject of identification. The object of identification is either a genus of goods or a specific good. \"A generic term is one that is commonly used as the name of a kind of goods. Unlike a trademark, which identifies the source of a product, a generic term merely specifies the genus of which the particular product is a species.\" Liquid Controls, Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986). The subject of identification is the relevant consuming public. \"The critical issue in genericness cases is whether members of the relevant public primarily use or" }, { "docid": "19913259", "title": "", "text": "not protectible. Suggestive and arbitrary marks are inherently distinctive and protectible. Frosty Treats, Inc., 426 F.3d at 1005. The crucial inquiry in this case is whether Brick Oven is generic or descriptive. A generic term can never function as a trademark because it refers to the common name or nature of the article. Id. A generic term does not identify the source of a product, but rather indicates the basic nature of the product. See id. “Because a generic term denotes the thing itself, it cannot be appropriated by one party from the public domain; it therefore is not afforded trademark protection even if it becomes associated with only one source,” Blinded Veterans Ass’n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1039 (D.C.Cir.1989), for a competitor must be able to “describe his goods as what they are.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 1569 (Fed.Cir.1987) (quoting CES Publ’g Corp. v. St. Regis Publ’ns, Inc., 531 F.2d 11, 13 (2nd Cir.1975)). Likewise, descriptive terms are generally not protectible because they are needed to describe all goods of a similar nature. Such a term describes the ingredients, characteristics, qualities, or other features of the product and may be used as a trademark only if it has acquired a secondary meaning. Id.; Co-Rect Prods., Inc, 780 F.2d at 1329. To be afforded protection, then, a descriptive term must be so associated with the product that it becomes a designation of the source rather than of a characteristic of the product. In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d at 1569. In the present case, if the primary significance of Brick Oven is to identify the product, and not to identify the source of that product, there can be no infringement action. See Nartron Corp. v. STMicroelectronics, Inc. 305 F.3d 397, 405 (6th Cir.2002); Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986). In deciding genericness, evidence of the relevant public’s understanding of a term “may be obtained from any competent source.” In re Merrill Lynch. Pierce, Fenner, & Smith." }, { "docid": "19767615", "title": "", "text": "Unfair Competition § 12:1 (4th ed.1997); see Horizon Mills, 161 F.Supp.2d at 211 (a generic term is “commonly used as the name for a type of goods.”). Examples of generic terms include “Ale House” for an establishment that sells food and beer, see Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140-41 (4th Cir.2000), “Cellular Sales” for the sale of cellular telephones, see Cellular Sales, Inc. v. Mackay, 942 F.2d 483, 486 (8th Cir.1991), “Light Beer” for beer that is light in body and taste, see Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 80 (7th Cir.1977), “Screenwipe” for a cloth used for cleaning computer and television screens, see In re Gould Paper Corp., 834 F.2d 1017, 1018-19 (Fed.Cir.1987), and “The Arabic Channel” for an Arabic language television channel. See GMT Prods., 816 F.Supp. at 207; see also 2 McCarthy § 12:18. Generic terms are never accorded trademark status, because to do so would grant a first-user a monopoly over common descriptive words that merely identify goods and services, depriving competitors of the opportunity to refer to their own goods and services as what they are. See PaperCutter, Inc. v. Fay’s Drug Co., 900 F.2d 558, 562 (2d Cir.1990) (“[CJonventional wisdom holds that generic terms ... are so useful to businesses selling the same product that no amount of money poured into promoting customers’ association of generic terms with a particular source can justify ‘depriving competing manufacturers of the product of the right to call an article by its name.’ ”) (quoting Abercrombie & Fitch, 537 F.2d at 9); CES Publ’g Corp. v. St. Regis Publ’ns, 531 F.2d 11, 13 (2d Cir.1975). “This rule [also] protects the interest of the consuming public in understanding the nature of goods offered for sale.... ” Otokoyama Co. Ltd. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999). Next in the classification hierarchy is the descriptive mark, which is one that “conveys an immediate idea of the ingredients, qualities, or characteristics of the goods.” Bernard v. Commerce Drug Co., 964 F.2d 1338, 1341 (2d" }, { "docid": "4140415", "title": "", "text": "Walker-Davis advances the argument that Penton’s trademark \"Energy Management” was improvidently issued and should be cancelled, pursuant to § 37 of the Lanham Act, 15 U.S.C. § 1119. Plaintiff’s contention is that the mark is generic, and thus not subject to the exclusive use of the defendant. Under the common law and the Lanham Act, an inherently distinctive trademark, that is, one which is either fanciful, arbitrary, or suggestive, does not require proof of secondary meaning in order to be legally protectable; but a non-distinctive or descriptive trademark only achieves protection if shown to have become distinctive, that is to have acquired secondary meaning. Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1228 (3d Cir. 1978); McCarthy, Trademarks and Unfair Competition, 815-1, p. 514. A generic term can never receive trademark protection or be validly registered, even if there is proof of secondary meaning. Abercrombie & Fitch Co. v. Hunting World, 537 F.2d 4, 9 (2d Cir. 1976); CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir. 1975); McCarthy, supra. A generic term is one which is commonly used as the name or description of a kind of goods. Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 S.Ct. 752 (1978). It is a term that refers, or has come to be understood as referring, to the genus of which the particular product is a species. Abercrombie & Fitch v. Hunting World, 537 F.2d at 9. The reason for precluding appropriation of such common descriptive terms is clear: “to allow trademark protection for generic terms, i. e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods or what they are.” CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d at 13; Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d at 80. In determining whether the title of" }, { "docid": "9984778", "title": "", "text": "-thing. It is very similar to an adjective.” Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 404 n. 7 (6th Cir.2002), cert. denied, 538 U.S. 907, 123 S.Ct. 1486, 155 L.Ed.2d 227 (2003). . \"To acquire a secondary meaning in the minds of the buying public, an article of merchandise when shown to a prospective cus- tainer must prompt the affirmation, 'That is the article I want because I know its source,' and not the negative inquiry as to ‘Who makes that article?' \" Esercizio v. Roberts, 944 F.2d 1235, 1239 (6th Cir.1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992) (internal quotation marks omitted). When determining whether a particular mark or trade dress has acquired a secondary meaning, we apply a seven-factor test which considers: \"(a) direct consumer testimony; (b) consumer surveys; (c) exclusivity, length, and manner of use; (d) amount and manner of advertising; (e) amount of sales and number of customers; (f) established place in the market; and (g) proof of intentional copying.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 640 n. 14 (6th Cir.2002) (citations omitted). Merely descriptive marks that have been registered federally and that have become incontestable pursuant to 15 U.S.C. § 1065 are presumed to have acquired a secondary meaning. See Nartron, 305 F.3d at 404 n. 7. .\"A generic term is one that is commonly used as the name of a kind of goods. Unlike a trademark, which identifies the source of a product, a generic term merely identifies the genus of which a particular product is a species. If a mark's primary significance is to describe a type of product rather than the producer, it is generic and is not a valid trademark.” Nartron, 305 F.3d at 404 (internal quotation marks and citations omitted). . The district court’s oral ruling on the question of the TUMBLEBUS mark’s distinctiveness is admittedly a bit opaque; however, based on the district court's reference to actual use and its characterization of the mark as “unique,” we conclude that the district court classified TUMBLEBUS as a" }, { "docid": "2359625", "title": "", "text": "registration of the mark for similar services is persuasive evidence of distinctiveness, and also argues that there is no direct evidence that CASH MANAGEMENT ACCOUNT is generic for the services for which registration is sought. From the examiner’s evidence of usage in newspapers and financial publications, the Board concluded that “[wjhile there are references to applicant as a pioneer in this type of account”, as well as first user of the term to identify such an account, “it appears that said term has been adopted by a major segment of financial business as a name to designate services such as applicant offers.” In re Merrill Lynch, 230 USPQ at 130. The four classic categories — generic (“common” descriptive), descriptive (“merely” descriptive), suggestive, or arbitrary-have been described as “central tones in a spectrum”, that “tend to merge at their edges and are frequently difficult to apply.” Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1183, 207 USPQ 278, 282 (5th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981). Nonetheless, the distinctions are critical to the availability and the evidentiary requirements of registration. Generic terms, by definition incapable of indicating source, are the antithesis of trademarks, and can never attain trademark status. Dan Robbins & Associates, Inc. v. Questor Corp., 599 F.2d 1009, 1014, 202 USPQ 100, 105 (CCPA 1979). The reason is plain: To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are. CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13, 188 USPQ 612, 615 (2d Cir.1975). In contrast, “merely descriptive” terms are capable of acquiring, in the view of the consuming public, an association with the source of the goods or services; that is, a secondary meaning in accord with 15 U.S.C. § 1052(f). See Roselux Chemical Co. v. Parsons Ammonia Co., 299 F.2d 855, 862, 132 USPQ 627, 633 (CCPA 1962)" }, { "docid": "23005830", "title": "", "text": "but ... also a product genus.” Id. at 301. In confronting these situations, courts must remember that [t]he genericness doctrine prevents trademarks from serving as the substitutes for patents, and protects the public right to copy any non-patented, functional characteristic of a competitor’s product. Trademark law seeks to provide a producer neither with a monopoly over a functional characteristic it has originated nor with a monopoly over a particularly effective marketing phrase. Instead the law grants a monopoly over a phrase only if and to the extent it is necessary to enable consumers to distinguish one producer’s goods from others and even then only if the grant of such a monopoly will not substantially disadvantage competitors by preventing them from describing the nature of their goods. Accordingly, if a term is necessary to describe a product characteristic that a competitor has a right to copy, a producer may not effectively preempt competition by claiming that term as its own. Id. at 305 (citations omitted). Thus, explained Judge Becker, to be consistent with the primary significance test, whether a product brand with a name used by one producer constitutes its own genus must turn on the extent to which the brand name communicates functional characteristics that differentiate the brand from the products of other producers. In making these calculations, consumer understanding will determine the extent to which a term communicates functional characteristics and the significance of a term’s role in doing so because of a dearth or abundance of alternative terms that effectively communicate the same functional information. Id. With these principles in mind, the Canfield court, relying on our decision in CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir.1975) (“To allow trademark protection for generic terms, i.e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.”), promulgated a test to determine if a new product name must be deemed also to refer to" }, { "docid": "14035978", "title": "", "text": "(2) terms commonly used for naming the specific product at issue. See Hunt Masters, Inc. v. Landry’s Seafood Rest, Inc., 240 F.3d 251, 254 (4th Cir.2001); Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95, 100-01 (2d Cir.1989) (distinguishing an invented term expropriated by the public from a term in common use); see also King-Seeley Thermos Co. v. Aladdin Indus., Inc., 321 F.2d 577 (2d Cir. 1963) (holding “thermos” generic). Under the Lanham Act, the test for determining genericness is “the primary significance of the registered mark to the relevant public.” 15 U.S.C. § 1064(3). However, this test measures when a “registered mark has become the generic name of goods.” Id. (emphasis added). In this case, neither party contends that the Plaintiff invented the term “wool felt” or that it has since become “generieized.” Instead, Defendant argues that Plaintiff has appropriated a generic term, while Plaintiff argues that the term “wool felt” is “merely descriptive” for a product that is known generically as “felted wool fabric.” In either case, the “primary significance” test for genericness is inapposite, and survey evidence is therefore unnecessáry. Resolution of Defendant’s motion for summary judgment on this claim rests on the simple axiom that generic terms receive no trademark protection. Public policy demands that generic terms be free for all to use and not susceptible to appropriation by one company. Allowing a trademark in a generic name is like granting a company a monopoly. See CES Publ’g Corp. v. St. Regis Publ’ns, 531 F.2d 11, 13 (2d Cir.1975) (Friendly, J.); see also Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609 (7th Cir.1986) (“Imagine being forbidden to describe a Chevrolet as a ‘car’ or an ‘automobile’ because Ford or Chrysler or Volvo had trademarked these generic words.”) Plaintiff does not challenge Defendant’s right to manufacture' the product, but nonetheless seeks to impede Defendant’s entry into the wool felt market by preventing Defendant from calling its product what it is: wool felt, a term used generally to identify the parties’ product for decades before Plaintiff registered it. Trademark law simply does" } ]

[ { "docid": "22873744", "title": "", "text": "and a judgment upon it was equivalent to an actual return of the replevied property. The suit upon the bond was, therefore, but an attempt to enforce a pretended judgment of \"the State court, rendered in. a case over which it had no jurisdiction, but which had been' transferred to and decided by the United States Circuit Court, by a judgment in favor of the plaintiffs in replevin. The bill in this case was, therefore, ancillary to the replevin suit, and was in substance a proceeding in the Federal court to enforce its own judgment by preventing the defeated party from wresting the replevied property from the plaintiffs in replevin, who, by the judgment of the court, were entitled to it, or what was in effect the same thing, preventing them from enforcing a bond for the return of the property to them. A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of inj unction to stay proceedings in a State court. Dietzsch, the original plaintiff in the action on the replevin bond, represented the real parties in interest, and he was a pai’ty to the action of replevin, which had been pending, and was finally determined in the United States Circuit Court. That court, had jurisdiction of his person, and could enforce its judgment in the replevin suit against him, or those whom he represented, their agents and attorneys. The bill in this case was filed for that purpose and that only. If tlie-bill is not maintainable, tbe appellees would find themselves in precisely the same plight as if the judgment of the United States Circuit Court in the replevin suit had been against them, instead of for. them. The judgment in théir favor would settle nothing. Instead of terminating the strife between them and their adversaries, it would leave them under the necessity of engaging in a new conflict elsewhere. This would be contrary to the plainest principles of reason and justice. As the bill in this case is filed for the purpose" } ]

[ { "docid": "22873740", "title": "", "text": "execution creditors, the Bank of North America and John McCaffrey. Thereupon Huidekoper, Shannon, and Dennison, on June 10, 1878, filed the bill in this case in the United States Circuit Court for the Northern District of Illinois, against Dietzsch and Kerni in which they prayed an injunction to restrain them, their attorneys, agents, &c., and the execution creditors represented by them, from prosecuting any suit upon said replevin bond against the principals or sureties therein, “or in any manner whatever taking any action to enforce any liability or right upon said pretended judgment of return entered in said Circuit Court of Cook County or upon the said replevin bond.” On July 1, 1878, a preliminary injunction was allowed restraining the defendants below from in any manner prosecuting said action upon the replevin bond, or in any manner enforcing said judgment of return. After the filing of this bill the action on the replevin bond in the State court was dismissed as to all the defendants except John B. Drake. On Oct. 20, 1879, the complainants below filed their supplemental bill, in which they alleged that on Oct. 1, 1879, on motion of William J. Hynes,.an order was entered in the Circuit Court for Cook-County in the said, suit, brought in the name of Emil Dietzsch on said replevin bond, against complainants and their sureties, by which the Bank of North America and John McCaffrey were substituted for Dietzsch as parties plaintiff in said action, and- an. amended declaration was filed by them as such plaintiffs, and a rule was entered against Drake requiring him to plead to such amended declaration within twenty days. The supplemental bill charged that the Bank of North America and John McCaffrey, and Edwin Walker, their attorney, had personal knowledge of the allowance and issue of said injunction, and that the judgment in favor of the Bank of North America was the property of Walker, and that the pro- . ceedings in said action of debt were in violation of the injunction of the court and taken for the purpose of evading its orders* and prayed" }, { "docid": "22838285", "title": "", "text": "While the jurisdiction lasted it was exclusive, and could not be trenched upon by any Other tribunal. The court below might, upon a cross-bill, and, perhaps, upon motion, have given the relief which was given by the interlocutory and the final decree in the case before us. If it could not be given in this ease the result would have shown the existence of a great defect in our Federal jurisprudence, and have been a reproach upon the administration of justice. In that event the payment of the annulled decree may be enforced in Pennsylvania, and Hay, notwithstanding the final decree in that ease, and in this case, would find himself in exactly the same situation he would have been if those decrees had been against him instead of being in bis favor. They would be nullities as regards any protection they could have given him. Instead of terminating the strife between him and his adversary, they would leave him under the necessity of engaging in a new conflict elsewhere. This would be contrary to the plainest principles of reason and justice. The prohibition in the Judiciary Act against the granting of injunctions by the coui’ts of the United States touching proceedings in State courts has no application here. The prior jurisdiction of the court below took the case out of the operation of that provision. If the State courts should persist in proceeding — a thing not to be expected — the wrong will be on the part of those tribunals and not of the court below. Decree affirmed. Logan v. Patrick, 5 Cranch, 288; Dunn v. Clark, 8 Peters, 1; Dunlap v. Stetson, 4 Mason, 349, 360; Clark v. Mathewson, 12 Peters, 164. Watts v. Waddle, 6 Peters, 391; Lewis v. Darling, 1 Howard, 1. Hagan v. Lucas, 10 Peters, 400; Taylor v. Carryl, 20 Howard, 484; Freeman v. How, 24 Id. 450; Taylor v. Tainter, 16 Wallace, 370." }, { "docid": "22790776", "title": "", "text": "all the defendants in the chancery suit were citizens of Ohio. This court said: \"The injunction bill is not considered an original bill between the same parties aa at law, but if other parties are made in the bill and different interests involved, it must be considered to that extent at least an original bill, and the jurisdiction of the Circuit Court must depend Upon the citizenship of the parties.” It was further said, that as there appeared to be matters-of equity in the case which could be investigated by a State court it would be reasonable and just to stay all proceedings on the judgment until the complainants 'Should have time to seek relief from a State tribunal. The decree of the Circuit Court was modified accordingly. In Freeman v. Howe, it appears that White had sued in the Circuit Court of the United States for Massachusetts and attached certain property of the defendant. The property was taken from the possession of the marshal by a -writ of replevin issued from a State court. The marshal appeared in that court and.set up as a defence that he held the property when it was taken -from him, by viytue of ptocess issued froip .the Circuit Court. This defence was overruled and the judgment against him was affirmed by the Supreme Court of the State. That judgment was reversed by this court upon the ground that the Circuit Court, having first acquired possession of the res, could not be deprived of that possession until the litigation there was brought to a close. This was the, only point involved in the case and the only one decided. The learned judge who delivered the opinion remarked that the marshal’s possession might have been protected by a proceeding in equity. In that connection he made certain remarks which were entirely proper as regards the facts of the case before him, but it is a misapprehension to suppose they are of universal application or that they can affect a case of the character of the one under consideration. The last of this series of cases" }, { "docid": "22349165", "title": "", "text": "decree. It was held that the existence of that equity authorized an injunction to prevent the plaintiff from improperly enforcing his judgment, even though it may have been perfectly valid in .itself. Other cases might be cited involving the same principle. But this is sufficient to show that if, in a proper case, the plaintiff holding a valid state judgment can be enjoined by the United States court from its inequitable use, — by so much the more can the Federal courts enjoin him from using that which purports to be a judgment but is, in fact, an absolute nullity. Marshall v. Holmes, 141 U. S. 597; Gaines v. Fuentes, 92 U. S. 10; Barrow v. Hunton, 99 U. S. 85. That the United States Circuit Court here could enjoin Simon from enforcing a void judgment against, the Southern Railway Company, has already been ruled in another branch of this very case. In habeas corpus proceedings (Ex parte Simon, 208 U. S. 144) he sought relief from the punishment imposed because of his violation of the temporary injunction granted in this cause. He there claimed that the attachment for contempt was. void because the court was without power to issue the injunction which he had violated. On that subject this court said: “This is not a suit coram non judice and wholly void by reason of Rev. Stat., § 720, forbidding United States courts to stay by injunction proceedings in any state court. The Circuit Court had jurisdiction of the cause. That must be assumed at this stage, and finally unless we overrule the strong intimations in Marshall v. Holmes, 141 U. S. 589, and the earlier cases cited in that case.” The appellant insists, however, that Marshall v. Holmes, referred to as conclusive unless overruled, does not support the jurisdiction of the Circuit Court because there no injunction was granted by the United States court. In that ease Mrs. Marshall brought a suit, in a Louisiana court, and obtained a temporary injunction restraining Holmes, Sheriff, from levying Mayer’s judgments 'alleged to be fraudulent. Her petition for removal to the" }, { "docid": "22873743", "title": "", "text": "Cook County, was removable to the United States Circuit Court; that by the proceedings for that purpose it was effectually removed on July 27, 1877, to the Federahjeourt, which after that date alone had jurisdiction thereof, and that all the subsequent proceedings in the cause in the State court were absolutely null and void. Upon this state of facts, the only .question for decision is, Could the court below enjoin the appellants from proceeding in the action at law, brought by them on the replevin bond in the Circuit Court for Cook County ? The action on the bond in that court was simply an attempt to enforce the judgment of that court in the replevin suit, rendered after its removal to the United States Circuit Court, and after the State court had lost all jurisdiction over the case. If no judgment had been rendered in the State, court against the plaintiffs in the suit, no action could have been maintained upon the bond. The bond took the place of the property seized in replevin, and a judgment upon it was equivalent to an actual return of the replevied property. The suit upon the bond was, therefore, but an attempt to enforce a pretended judgment of \"the State court, rendered in. a case over which it had no jurisdiction, but which had been' transferred to and decided by the United States Circuit Court, by a judgment in favor of the plaintiffs in replevin. The bill in this case was, therefore, ancillary to the replevin suit, and was in substance a proceeding in the Federal court to enforce its own judgment by preventing the defeated party from wresting the replevied property from the plaintiffs in replevin, who, by the judgment of the court, were entitled to it, or what was in effect the same thing, preventing them from enforcing a bond for the return of the property to them. A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of inj unction to stay proceedings in a" }, { "docid": "22734444", "title": "", "text": "permitted to become a party to the suit in order to have his title there determined. Risher v. Gilpin, 29 Ind. 53; And, accordingly, in the attachment suit of Hyde Brothers against Frey & Maag, as stated in the bill, the appellant, having been at first made a party on his own motion, was subsequently dismissed from it. Payment of the appraised value of the attached property to the marshal, which, by the terms of the delivery bond, he was bound to make,' it can hardly be insisted deprived him of his title to the goods and their proceeds. \"Without- giving the delivery bond, it is true', the owner could have brought suit against the’ marshal for trespass, although that would not in all cases furnish an adequate remedy by giving damages for the value of the property taken.. Watson v. Sutherland, 5 Wall. 74. - w The only legal remedy which can be said to be adequate for the purpose of protecting and preserving his right to the possession of his property was an. action of replevin; Of this, remedy at law in the .State court he was deprived by the fact that the proceedings in attachment were pending in a, court of the United States, because the property attached, being in the .. hands 'of the marshal, is regarded as in the custody of the court. This was the point decided in Freeman v. Howe, 24 How 450;, the doctrine of which must be considered as fully and firmly established in this court. In meeting the objections made in argument to the conclusion of the court in that case, Mr. Justice Nelson, delivering its opinion, used the following language: Another misapprehension under which the defendant in error labors, and in which the court below fell, was in respect to the appropriate remedy of the plaintiffs- in the replevin suit for the grievance complained of. ' It was supposed that they were 'utterly remediless in the federal courts, inasmuch as both parties were citizens of Massachusetts. But those familiar with the practice of the federal courts have found no" }, { "docid": "22873742", "title": "", "text": "that the Bank of Nor.th America, McCaffrey, Walker,..and Hynes might be made parties defendant to the' bill, and that the injunction allowed upon the original bill might be so enlarged as to include the said new defendants. Thereupon the Bank of North America, McCaffrey, Walker, and Hynes appeared and filed their demurrer to the original- and supplemental ■ bills, alleging as grounds of demurrer that the court had no jurisdiction to enjoin proceedings in the Circuit Court of Cook County, Illinois, as played for in said original and supplemental bills». The demurrer was overruled. The defendants who demurred, eleqting to stand by their demurrer, declined to plead or answer. Thereupon a decree pro eónfesso was taken against them, and a final decree was made against all the defendants, by which the preliminary injunction allowed in the case was made absolute and perpetual. That decree is brought here by appeal. We have already decided in Kern v. Huidekoper, supra, that the suit in replevin, instituted by Huidekoper and others against Kern in the Circuit Court for Cook County, was removable to the United States Circuit Court; that by the proceedings for that purpose it was effectually removed on July 27, 1877, to the Federahjeourt, which after that date alone had jurisdiction thereof, and that all the subsequent proceedings in the cause in the State court were absolutely null and void. Upon this state of facts, the only .question for decision is, Could the court below enjoin the appellants from proceeding in the action at law, brought by them on the replevin bond in the Circuit Court for Cook County ? The action on the bond in that court was simply an attempt to enforce the judgment of that court in the replevin suit, rendered after its removal to the United States Circuit Court, and after the State court had lost all jurisdiction over the case. If no judgment had been rendered in the State, court against the plaintiffs in the suit, no action could have been maintained upon the bond. The bond took the place of the property seized in replevin," }, { "docid": "13609794", "title": "", "text": "in Freeman v. Howe, 24 How. [65 ü. S.) 450, where a suit had been duly commenced in the federal court by attachment of property, and, while the same was in the possession of the marshal, it was taken from him by process of replevin issued by the state court at the suit of a third party, the court not only held that such interference with the custody of the marshal was illegal, but declared that a bill of equity might, in such case, be filed by the plaintiff in the federal court against the plaintiff in the re-plevin suit, notwithstanding both were citi zens of the same state. These cases proceed upon the ground, that, where the federal court is proceeding in the due exercise of its jurisdiction, it has power to regulate and control its own judgments, and carry them into execution, and power to maintain its own jurisdiction, and protect either plaintiff or defendant therein, in respect of the subject-matter thus lawfully within its jurisdiction, and, by an ancillary suit, to call in parties for those purposes, whether their citizenship would have authorized an original suit against them by the plaintiff in such ancillary proceeding, or not. The present is no such case. Here, the original suit was for the dissolution of a copartnership, and the adjustment of the rights of the complainant and Dorr. In that the marble company had no interest, and they have done nothing to prevent that suit from proceeding to its termination according to its intent and purpose. The cause of action against the marble company is its refusal to perform a contract made with the firm, and the decree sought is the specific performance of that contract To grant the relief might be useful to the parties to the original bill, but it has no legal connection with the cause of action therein, and is in no sense necessary to the full exercise of the jurisdiction of the court. It is not, in any sense, a continuation of the original suit, but an attempt to add a new cause of action" }, { "docid": "22796298", "title": "", "text": "against prosecution of the state suit. Against the claimed protection of R. S. § 720 (§ 265 J. C.), p. 193, it was held here that a federal court may “protect the title which it has decreed as against every one a party to the original suit and prevent that party from relitigating the questions of right which have already been determined.” P. 195. It is quite clear that the Court in both the Julian and the Riverdale cases was intent not on protecting a res, since that had long passed from its hands, but on avoiding relitigation by executing its decrees. This appears particularly from their reliance upon French v. Hay, 22 Wall. 250; Dietzsch v. Huidekoper, 103 U. S. 494; and Sharon v. Terry, 36 F. 337. In the French case no res was involved. It was a federal injunction against the enforcement of a judgment of a state court obtained in a state action after removal of a related but separate state suit. The reasoning proceeded upon the protection of federal judgments, not on the language of the removal statute. The same is true of Dietzsch. There a state suit on a replevin bond was enjoined by the federal court because it grew out of a failure to return property awarded in replevin in a state court after the removal of the original replevin suit to the federal court which issued the injunction. It was there said, p. 497: “A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a State court.” The Court today lays aside Gunter v. Atlantic Coast Line, 200 U. S. 273 (1906), as inapplicable. The case in our view may be properly cited as a relitigation decision. It forcefully declares, albeit by alternative ruling, for the position here taken. A federal court had enjoined a state tax on the ground of unconstitutionality. The state was a party. Years later the state brought an action in the state court for the tax which" }, { "docid": "22235592", "title": "", "text": "v. Huidekoper, 103 U. S. 494, are cited to the alleged effect that the prohibition in section 720 does not apply where the jurisdiction of a Federal court has first attached. The cited cases were of ancillary bills, and were in substance proceedings in the Federal courts to enforce their own judgments by preventing the defeated parties from wresting replevied property from the plaintiffs in replevin, who by the final judgments were entitled to it. As was' said in Dieizsch v. Huidekoper: “ A court of the United States is not prevented from enforcing its own judg ments by the statute which forbids it to grant a writ of injunction to stay proceedings in a state court. Dietzsch, the original plaintiff in the action on the replevin bond, represented the real parties in interest, and he was a party to the action of replevin, which had been pending, and was finally determined in the United States Circuit Court. That court had jurisdiction of his person, and could enforce its judgment in the replevin suit against him, or those whom he represented. The bill in this case was filed for that purpose and that only.” Nor was there any attempt made in those cases to enjoin the state courts or any state officers engaged in the enforcement of any judgment or order of a state court. It is further contended that when the parties sought to. be enjoined have, as plaintiffs, submitted themselves to the court, by a bill in equity, as to the matter or right involved, a bill for an injunction will lie to prevent interference by criminal procedure in another court; and the decision of this court in In re Sawyer, 124 U. S. 200, is cited, where Mr. Justice Gray said: “ Modern decisions in England, by eminent equity judges, concur in holding that a court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there.” So, also, the case of The Mayor" }, { "docid": "22235591", "title": "", "text": "jurisdiction, unless expressly granted by statute, over the prosecution, the punishment or pardon of crimes and misdemeanors, or over the appointment and removal of public officers, and that to assume such a jurisdiction, -or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offences, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the Government. In re Sawyer, 124 U. S. 200. But, as respects section 720, it is argued that it must be read in connection with section 716, which provides that “ The Supreme Court and the Circuit and District Courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law; ” and the cases of French v. Hay, 22 Wall. 231, 253, and Dieizsch v. Huidekoper, 103 U. S. 494, are cited to the alleged effect that the prohibition in section 720 does not apply where the jurisdiction of a Federal court has first attached. The cited cases were of ancillary bills, and were in substance proceedings in the Federal courts to enforce their own judgments by preventing the defeated parties from wresting replevied property from the plaintiffs in replevin, who by the final judgments were entitled to it. As was' said in Dieizsch v. Huidekoper: “ A court of the United States is not prevented from enforcing its own judg ments by the statute which forbids it to grant a writ of injunction to stay proceedings in a state court. Dietzsch, the original plaintiff in the action on the replevin bond, represented the real parties in interest, and he was a party to the action of replevin, which had been pending, and was finally determined in the United States Circuit Court. That court had jurisdiction of his person, and could enforce its judgment in the replevin suit against" }, { "docid": "22355904", "title": "", "text": "of Humboldt, 120 Fed. Rep. 593. Marshall v. Holmes, just cited, was a suit in equity to enjoin one who had obtained judgments in a state court from enforcing them, that relief being sought on the ground that they were secured by fraud which was not discovered until after they were rendered; and the question distinctly presented was whether the suit was one which the Circuit Court of the United States could entertain and decide, the requisite diversity of citizenship and amount in dispute being present. This court, — after adverting to prior decisions stating the familiar doctrine that “any fact which clearly proves it to be against cpnscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery,” and also showing that such a suit is not one to review or revise the action of the court rendering the judgment, but is a new and independent suit for equitable relief, — answered the question by saying: “These authorities would seem to place beyond question the jurisdiction of the Circuit Court to take cognizance of the present suit, which is none the less an original, independent suit, because it relates to judgments obtained in the court of another jurisdiction. While it cannot require the state court itself to set aside or vacate the judgments in question, it may, as between the parties before it, if the facts justify such relief, adjudge that Mayer shall not enjoy the inequitable advantage obtained by his judgments. A decree to that effect would operate directly upon him, and would not contravene that provision of the statute prohibiting a court of the United States from granting a writ of injunction to stay proceedings in a state court. It would simply také from him the benefit of judgments obtained by fraud.” Simon v. Southern Ry. Co., supra, was a" }, { "docid": "22403703", "title": "", "text": "the cause, would not permit its jurisdiction to be trenched upon by any other tribunal, and might properly enjoin a party to the cause from proceeding beyond the territorial jurisdiction of the court in contravention of its decree. So, in Dietzsch v. Huidekoper, 103 U. S. 494, a plaintiff in a replevin suit brought in a state court had properly removed it to the Federal court and obtained a judgment there in his favor, but the state court proceeded to try the cause and render judgment against the plaintiff, notwithstanding the removal, and an action was then brought in the state court upon the replevin bond. It was held that the court of the United States might enjoin the prosecution of such action; the relief being merely ancillary to the jurisdiction already acquired and necessary to give effect to its own judgment. And resort to injunction in proceedings in admiralty for the limitation of the liability of ship owners under an act of Congress, passed since the act of 1793, and expressly provided that after the institution of such proceedings “ all claims and proceedings against the owner shall cease; ” Act of March 3,1851, c. 43, § 4; 9 Stat. 635 ; Key. Stat. § 4285; was sustained in Providence & New York Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578, 599, 600. ' These were all cases in which the. issue of an injunction to a state court had been expressly ór impliedly authorized by Congress as necessary to the effectual exercise by a court of the United States of its lawful jurisdiction over particular persons or things. In Gaylord v. Fort Wayne &c. Railroad, 6 Bissell, 286, 291, 292, a bill was filed in the Circuit Court of the United States for the District of Indiana, to obtain, among other things, the appointment of a receiver of the property of an insolvent corporation, and to administer it for the benefit of the creditors. After a demurrer to the bill had been sustained and an amendment made, a receiver was appointed. While proceedings were pending in" }, { "docid": "22796299", "title": "", "text": "not on the language of the removal statute. The same is true of Dietzsch. There a state suit on a replevin bond was enjoined by the federal court because it grew out of a failure to return property awarded in replevin in a state court after the removal of the original replevin suit to the federal court which issued the injunction. It was there said, p. 497: “A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a State court.” The Court today lays aside Gunter v. Atlantic Coast Line, 200 U. S. 273 (1906), as inapplicable. The case in our view may be properly cited as a relitigation decision. It forcefully declares, albeit by alternative ruling, for the position here taken. A federal court had enjoined a state tax on the ground of unconstitutionality. The state was a party. Years later the state brought an action in the state court for the tax which the decree prohibited. An ancillary bill sought and obtained an injunction from the federal court. This Court said, p. 292, “Indeed, the proposition that the Eleventh Amendment, or section 720 of the Revised Statutes, control a court of the United States in administering relief, although the court was acting in a matter ancillary to a decree rendered in a cause over which it had jurisdiction, is not open for discussion. Dietzsch v. Huidekoper, 103 U. S. 494; Prout v. Starr, 188 U. S. 537; Julian v. Central Trust Co., 193 U. S. 93, 112.” It cannot fairly be said, we think, that this was not a holding that a federal court has the duty to protect its parties against relitigation. This seems quite certain when we examine the cases cited which are discussed heretofore in this opinion. The Terry case, cited under the Riverdale Mills case, supra, is a good illustration of the permeation of our law by the principle of protection of federal decrees by injunctions against prosecuting state suits which relitigate settled issues." }, { "docid": "22838284", "title": "", "text": "Mr. Justice SWAYNE delivered the opinion of the court. A stronger equity can hardly exist than that which is developed in favor of the appellee in the case before us. The order of the court below, annulling the decree upon which the suit at law in Pennsylvania was founded, was fatal to that action, and entitled Hay to a perpetual injunction, without reference to the final result of the prior case. This bill is not an original one. It is auxiliary and dependent in its character, as much so as if it were a bill of review. The court having jurisdiction in personam, had power to require the defendant to do or to refrain from doing anything beyond the limits of its territorial jurisdiction which it might have required to be done or omitted within the limits of such territory. Having the possession and jurisdiction of the ease, that jurisdiction embraced everything in the case, and every question arising which could be determined in it until it reached its termination and the jurisdiction was exhausted. While the jurisdiction lasted it was exclusive, and could not be trenched upon by any Other tribunal. The court below might, upon a cross-bill, and, perhaps, upon motion, have given the relief which was given by the interlocutory and the final decree in the case before us. If it could not be given in this ease the result would have shown the existence of a great defect in our Federal jurisprudence, and have been a reproach upon the administration of justice. In that event the payment of the annulled decree may be enforced in Pennsylvania, and Hay, notwithstanding the final decree in that ease, and in this case, would find himself in exactly the same situation he would have been if those decrees had been against him instead of being in bis favor. They would be nullities as regards any protection they could have given him. Instead of terminating the strife between him and his adversary, they would leave him under the necessity of engaging in a new conflict elsewhere. This would be contrary to" }, { "docid": "23075178", "title": "", "text": "Mr. Justice Miller delivered the opinion of the court. The complainant filed his bill addressed to the Circuit Court sitting in chancery, alleging that he is the ownc^r of dredge-boat No. 3, lying in the river at New Orleans ; that Morton, Bliss, & Co. having obtained a judgment in the same court against the Mississippi and Mexican Gulf Ship Canal Company for over $24,000, had issued an execution on said judgment, under which the marshal had seized dredge-boat No. 3, and had advertised to sell it to satisfy the writ; that he, and not the Ship Canal Company, is the owner of the boat; that it is not liable to be taken on said execution ; that the seizure has already subjected him to a loss of $5,000, and that his continued deprivation of its use will cause him much greater loss. He prays for process, that the judgment plaintiffs and Paekard, the marshal, be .made defendants, and enjoined from interfering with him in the possession of the boat; that he be quieted and maintained in his title and possession, and defendants decreed to pay him $5,000 aforesaid as damages. A temporary injunction was granted. Answers and a replication thereto were filed, depositions and other testimony taken. On hearing, the court dissolved the injunction and dismissed the bill. The first question we are called to consider is, whether the Circuit Court had jurisdiction of this suit in equity. H the case had arisen in any State where separate jurisdic tion at common law and in equity was fully recognized, there could be no difficulty in answering this question in the negative. The remedy in all times for this trespass, which is a very common one, has been by an action of replevin to take the property out of the hands of the sheriff or marshal and return it to the owner, or to leave the officer to proceed with the sale of the property and sue him or the purchaser in trespass for its value and for any incidental damage. In the one case tne party whose property was" }, { "docid": "22873741", "title": "", "text": "below filed their supplemental bill, in which they alleged that on Oct. 1, 1879, on motion of William J. Hynes,.an order was entered in the Circuit Court for Cook-County in the said, suit, brought in the name of Emil Dietzsch on said replevin bond, against complainants and their sureties, by which the Bank of North America and John McCaffrey were substituted for Dietzsch as parties plaintiff in said action, and- an. amended declaration was filed by them as such plaintiffs, and a rule was entered against Drake requiring him to plead to such amended declaration within twenty days. The supplemental bill charged that the Bank of North America and John McCaffrey, and Edwin Walker, their attorney, had personal knowledge of the allowance and issue of said injunction, and that the judgment in favor of the Bank of North America was the property of Walker, and that the pro- . ceedings in said action of debt were in violation of the injunction of the court and taken for the purpose of evading its orders* and prayed that the Bank of Nor.th America, McCaffrey, Walker,..and Hynes might be made parties defendant to the' bill, and that the injunction allowed upon the original bill might be so enlarged as to include the said new defendants. Thereupon the Bank of North America, McCaffrey, Walker, and Hynes appeared and filed their demurrer to the original- and supplemental ■ bills, alleging as grounds of demurrer that the court had no jurisdiction to enjoin proceedings in the Circuit Court of Cook County, Illinois, as played for in said original and supplemental bills». The demurrer was overruled. The defendants who demurred, eleqting to stand by their demurrer, declined to plead or answer. Thereupon a decree pro eónfesso was taken against them, and a final decree was made against all the defendants, by which the preliminary injunction allowed in the case was made absolute and perpetual. That decree is brought here by appeal. We have already decided in Kern v. Huidekoper, supra, that the suit in replevin, instituted by Huidekoper and others against Kern in the Circuit Court for" }, { "docid": "22873739", "title": "", "text": "Mr. Justice Woods delivered the opinion of the court. After the recovery of the judgment at law, on June 5, 1878, by Charles Kern, one of the appellants, in the Circuit Court for the County of Cook, in the action of replevin mentioned in Kern v. Huidekoper, supra, p. 485, notwithstanding the removal of the said cause to the Circuit Court of the United States for the Northern District of Illinois, the writ of retorno habendo was issued thereon, which the plaintiffs in the replevin suit refused to obey. Thereupon, on June 7, 1878, an action of debt upon the replevin bond given by them was begun in the Circuit Court of Cook County against Frederick W. Huidekoper, Thomas W. Shannon, and John Dennison, the principals, and A. B. Meeker and John B. Drake, the sureties on said bond. The action was brought in the name of Emil Dietzsch, the coroner, for the use of Charles Kern, the sheriff, who was nominally interested only, the real interest in the litigation being in the judgment and execution creditors, the Bank of North America and John McCaffrey. Thereupon Huidekoper, Shannon, and Dennison, on June 10, 1878, filed the bill in this case in the United States Circuit Court for the Northern District of Illinois, against Dietzsch and Kerni in which they prayed an injunction to restrain them, their attorneys, agents, &c., and the execution creditors represented by them, from prosecuting any suit upon said replevin bond against the principals or sureties therein, “or in any manner whatever taking any action to enforce any liability or right upon said pretended judgment of return entered in said Circuit Court of Cook County or upon the said replevin bond.” On July 1, 1878, a preliminary injunction was allowed restraining the defendants below from in any manner prosecuting said action upon the replevin bond, or in any manner enforcing said judgment of return. After the filing of this bill the action on the replevin bond in the State court was dismissed as to all the defendants except John B. Drake. On Oct. 20, 1879, the complainants" }, { "docid": "22349168", "title": "", "text": "a court and enjoining a party; and the difference between setting aside a judgment for irregularity and setting it aside for fraud. It was held that the case was removable, since, there being diversity of citizenship,, the Circuit Court of the United States had jurisdiction to award Mrs. Marshall protection by preventing the plaintiff-from enforcing his judgments if they were found'to be fraudulent in fact, saying that the “Authorities would seem to place beyond question the jurisdiction of the Circuit Court to take cognizance of the present suit, which is none the less an original, independent suit, because it relates to judgments obtained in the court of another jurisdiction. While it cannot require the state court' itself to set aside or vacate the judgments in question, it may, -as between the parties before it, if the facts justify such relief, adjudge that Mayer shall not enjoy :the inequitable advantage obtained by his judgments. A decree to that effect would operate directly upon him, and would not contravene that provision of the statute prohibiting a court of the United States from granting a writ of injunction to stay proceedings in a state court. 'It' would simply take from him the benefit of judgments obtained by fraud.’ ” And if a United States court- can enjoin a plaintiff from using a judgment, proved to be fraudulent, it can likewise enjqin him from using .a judgment absolutely void for want of service. 4. The Appellant Simon further contends that Marshall v. Holmes, is not applicable here because that was a removal case; and it is urged that even if a Federal court can grant an injunction in a case removed, it cannot award the same relief in a bill originally brought in the Federal court. But that is a clear case of distinction without a difference and was not the basis of the decision. Indeed (excluding ancillary bills Traction Company v. Mining Company, 196 U. S. 245), it seems always to have been assumed that the prohibition of § 720 applied to cases removed to the United States courts, as well as to" }, { "docid": "22941689", "title": "", "text": "they could convey for collection or otherwise, and that consequently there was no one capable of taking or holding security for it. The result was that the lien of Wood, under his mortgage, was fixed at $3,295.36. This amount he was allowed to retain out of the value of the goods in his hands, and a judgment was given against him in favor , of Weimar for the balance, being $5,575.10 and costs. To reverse this judgment against him the case has been brought here by Wood. The errors assigned present for our' consideration the foregoing rulings below and the exception to the admission in evidence of the deed recorded in Cook County. As to the right to bring an action of replevin. Practically this involves only a question of costs ; for in the progress of the cause Wood was given the same kind of relief ,he would have been entitled to if the court had held that his suit was properly brought. By a .statute of Michigan (C. L. of 1871, sect. 6754), “ when either of the parties to.an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages in all cases arising under this chapter-; and the finding of the jury or court, as the case may be, shall be according to such fact, and the cour|; shall thereupon render such judgment as shall be just between the parties.” Confessedly Wood was only a lien-holder. The goods were delivered into his possession under the writ, and their value, was agreed on. Weimar did not ask their return, but was content with a judgment for the value of what had been wrongfully taken from him. His interest in the property was only that which the attaching creditors could subject to the payment of their debts. Another provision" } ]

[ { "docid": "8184965", "title": "", "text": "al is warranted.” United States v. Curry, 977 F.2d 1042, 1059 (7th Cir.1992) (emphasis omitted), cert. denied, — U.S. —, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). Under § 3El.l(a), a district judge may reduce a defendant’s base offense by two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). Prior to the November 1, 1992 amendment to the Sentencing Guidelines, a two-level reduction was available only if the defendant demonstrated acceptance of responsibility for his “criminal conduct,” which included both the conduct underlying the offense of conviction and uncharged conduct related to that offense. Ebbole v. United States, 8 F.3d 530, 537 (7th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1229, 127 L.Ed.2d 573 (1994). The November 1, 1992 amendment to the Sentencing Guidelines substantively changed the factors to be considered in determining whether a defendant has demonstrated an acceptance of responsibility. Id. at 537-39. As explained in the Commentary to § 3E1.1, in deciding whether a defendant merits a two-level reduction pursuant to the Guideline, the district judge should consider whether the defendant has: truthfully admitt[ed] the conduct comprising the offense(s) of conviction, and truthfully admitt[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1, comment, (n. 1(a)) (Nov. 1, 1992). Application Note 1(a) thus provides that although a defendant seeking a two-level reduction pursuant to § 3El.l(a) must clearly accept responsibility for the conduct comprising his offense of conviction, and may not falsely deny relevant conduct beyond the scope of his offense, the defendant “should" } ]

[ { "docid": "5620774", "title": "", "text": "defendant’s appeal may draw a guidelines cross-appeal when the government would [probably] not ... appeal on its own in the first instance.” United States v. Bradley, 165 F.3d 594, 595 (7th Cir.1999). See also United States v. Martinson, 37 F.3d 353 (7th Cir.1994) (affirming conviction but finding clear error in reduction of offense level for acceptance of responsibility). While we find no merit in Szarwark’s appeal, we agree with the government’s contention on cross-appeal that Szarwark was not entitled to any sentence reduction for acceptance of responsibility. We review a district court’s determination of acceptance of responsibility for clear error, bearing in mind the Guidelines’ directive that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” and that, consequently, “the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, Application Note 5. Even under this deferential standard, however, Szarwark’s sentence reduction cannot stand. The Sentencing Guidelines provide that a defendant who “clearly demonstrates acceptance of responsibility for his offense,” is entitled to a two level reduction. U.S.S.G. § 3El.l(a). In order to receive this reduction, it is normally necessary, (although not sufficient) for the defendant to plead guilty. United States v. Cunningham, 103 F.3d 596, 598 (7th Cir.1996); United States v. Beserra, 967 F.2d 254, 255 (7th Cir.1992). See also U.S.S.G. § 3E1.1, Application Note 3. This bias in favor of guilty pleas arises from the Guidelines’ admonition that an acceptance of responsibility reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” Id., Application Note 2. See also Cunningham, 103 F.3d at 598 (“[T]he [acceptance of responsibility] provision is designed in part to help the government and the judiciary avoid the time and expense of trial.”); Beserra, 967 F.2d at 256 (“The framers of the sentencing guidelines ... wanted to encourage the guilty to plead guilty in order to save the government and the judiciary the costs of trial”). Consistent with this policy, however, a defendant may, in “rare" }, { "docid": "8292199", "title": "", "text": "for clear error.”)(citing United States v. Dethlefs, 123 F.3d 39, 43 (1st Cir.1997); United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990); U.S.S.G. § 3E1.1, cmt. (n.5)). Nevertheless, we continue to conduct a plenary review of any related legal questions, including the interpretation of the sentencing guidelines. Deppe, 509 F.3d at 60 (citing United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir.1994)). The Sentencing Guidelines recognize the “legitimate societal interests” in acceptance of responsibility and therefore allow sentencing judges to provide a measure of leniency to those defendants who accept responsibility for their actions. U.S.S.G. § 3E1.1 cmt. backg’d. The Guidelines therefore dispense credit for acceptance of responsibility in two flavors: a two-point reduction at the discretion of the sentencing court if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). And, if, in a serious offense, a defendant accepts responsibility at an early stage of the investigation, a defendant may be eligible for an additional one point reduction in the offense level. U.S.S.G. § 3El.l(b). This second reduction is available only to defendants who accept responsibility early enough to save the government the time and expense of preparing for trial, and consequently, this further reduction is only available “upon motion of the government.” Id. Defendants are not, however, automatically entitled to even the two-point acceptance of responsibility reduction. United States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir.2000). The onus of proving acceptance of responsibility is on the defendant. Id. (defendant must “demonstrate that he has taken full responsibility for his actions and he must do so candidly and with genuine contrition”)(quoting United States v. Saxena, 229 F.3d 1, 9 (1st Cir.2000)). To prove acceptance of responsibility, a defendant must truthfully admit or not falsely deny the conduct comprising the conviction, as well as any additional relevant conduct for which he is accountable. Glaum, 356 F.3d at 180 (citing U.S.S.G. § 3E1.1, cmt. (n. 1(a))). We have further held that defendants who proceed to trial and put the government to its proof normally do not qualify for any reduction for acceptance of responsibility." }, { "docid": "23034865", "title": "", "text": "in following this plain language. IV. Acceptance of Responsibility Finally, Blanco-Gallegos argues that the district court erred in refusing to grant him an additional one-level reduction in offense level for acceptance of responsibility under U.S.S.G. § 3El.l(b). “Whether a defendant is entitled to an adjustment based on acceptance of responsibility is a factual determination reviewed for clear error.” United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir.1997). The district court awarded a two-level reduction in offense level under § 3El.l(a) for acceptance of responsibility. That determination was not appealed. Therefore, the only issue is whether Blanco-Gallegos satisfied one of the two options under § 3El.l(b) for the additional one-point reduction in offense level. A defendant qualifies for the one-point reduction under (b)(1) “if he timely provides complete information.” United States v. Stoops, 25 F.3d 820, 823 (9th Cir.1994). The key inquiry for § 3El.l(b) is whether the confession was complete and timely. United States v. Eyler, 67 F.3d 1386, 1391 (9th Cir.1995). At the time of his arrest, Blanco-Gallegos gave a statement which admitted all of the elements of the charged crime. Although not used at trial, this statement was timely and complete. Blanco-Gallegos was therefore entitled to the additional one-point reduction in offense level under § 3El.l(b). The government argues that Blanco-Gallegos recanted his statement and forced the government to prepare for trial. Those facts are relevant to the initial two-point reduction under § 3E 1.1(a), but that issue was not appealed. Once the two-point reduction under § 3E1.1 has been awarded, the only question is timeliness and completeness, and Blanco-Gallegos’s statement was complete and timely. We therefore reverse the district court’s decision denying the additional one-point reduction under § 3El.l(b). V. Conviction for Violating 8 U.S.C. § 1326(b)(2) Blanco-Gallegos was convicted of violating 8 U.S.C. §§ 1326(a) and (b)(2). After Blanco-Gallegos’s conviction, the Supreme Court held that § 1326(b)(2) is a sentencing factor and not a separate criminal offense. See Almendarez-Torres, 118 S.Ct. at 1226. On remand, the district court shall apply Almendarez-Torres to Blanco-Gallegos’s conviction on this count. See Alviso, 152 F.3d at 1199. CONCLUSION Blanco-Gallegos’s" }, { "docid": "21110900", "title": "", "text": "family. II. Under U.S.S.G. § 3El.l(a), a defendant is entitled to a two-level downward adjustment “[i]f [he] clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). A defendant merits a further, one-level downward adjustment pursuant to U.S.S.G. § 3El.l(b) if his offense level prior to application of § 3El.l(a) is 16 or greater and he: has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. U.S.S.G. § 3El.l(b). The defendant need not satisfy both (b)(1) and (b)(2); one or the other is sufficient. See United States v. Eyler, 67 F.3d 1386, 1391 (9th Cir.1995). Moreover, once the defendant proves by a preponderance of the evidence that he is eligible for the additional one-level adjustment, the district court has no discretion to refuse to award it. See id. at 1390. Lancaster maintains that he satisfies the requirement of (b)(1) and accordingly is entitled to a total adjustment of three levels for acceptance of responsibility. The Government acknowledges that Lancaster provided complete information concerning his involvement in the offense, but asserts that he is not entitled to the adjustment because he failed to provide this information in a timely manner. Accordingly, the only issue before us is whether the district court erred in concluding that Lancaster did not act “timely” within the meaning of § 3El.l(b)(l). The timeliness of Lancaster’s provision of information to the Government is a factual question that we review for clear error. See United States v. Jones, 31 F.3d 1304, 1315 (4th Cir.1994). To the extent the determination of timeliness by the district court rests on an interpretation of the guidelines, however, our review is de novo. See id. As the commentary to § 3E1.1 makes clear, the determination of whether a defendant has acted timely \"within the" }, { "docid": "2436778", "title": "", "text": "level for acceptance of responsibility for his criminal conduct as allowed under U.S.S.G. § 3E1.1. This decision is one of fact, particularly suited for the district court to make, and will not be disturbed unless clearly erroneous. United States v. Osmani, 20 F.3d 266, 269 (7th Cir.1994); United States v. Fuller, 15 F.3d 646, 650 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2689, 129 L.Ed.2d 820 (1994). See also U.S.S.G. § 3E1.1 cmt., n. 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on appeal.”). Acceptance of responsibility simply means “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). An oft-recited application note to § 3E1.1 reminds defendants of the central purpose of the acceptance of responsibility reduction: “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt., n. 2. The sum total of Glorioso’s acceptance of responsibility consists of his confession, following conviction and in ■ preparation of sentencing, of his criminal conduct. Not until trial was complete and an unfavorable verdict returned did Glorioso admit his crimes and express any, albeit a paltry, sense of remorse for his acts. Awarding the two-level reduction for this would be contrary to the basic system of incentives and disincentives established by the acceptance of responsibility reduction, namely to reward those who plead guilty — saving the judiciary and Government from the time, expense and effort of a trial — or who take “some other equivalently concrete act, such as pretrial payment of full restitution.” United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994); United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, — U.S. ——, 113 S.Ct. 419, 121 L.Ed.2d 341 (1992) (“A plea of guilty is (normally) a necessary, but" }, { "docid": "11098763", "title": "", "text": "client at greater risk. Section 3El.l(b), added to the “acceptance of responsibility” guideline effective November 1, 1992, see U.S.S.G. § 3E1.1, App. C, amend. 459, was intended to reward early information and guilty pleas that enhance the efficiency of the government and the court. See United States v. Ervin Robinson, 14 F.3d 1200, 1203 (7th Cir.1994). It provides an additional one-level reduction when the defendant’s conduct is timely enough to avoid trial preparation and scheduling. See U.S.S.G. § 3E1.1, comment, (n. 6). The guideline directs rather than allows the sentencing court to reduce the defendant’s offense level if the qualifying conditions are met. The error made by the district court is its assumption that a qualifying defendant perhaps “should get that additional level.” The language of § 3E1.1 is mandatory, not permissive: When a defendant demonstrates that he is qualified for the decrease, the guideline orders the decrease. Judge Selya, of the First Circuit, has succinctly analyzed the obligatory nature of this guideline: [N]othing in the language of U.S.S.G. § 3El.l(b) makes any reference, veiled or otherwise, to judicial power to withhold the one-level reduction- The language of subsection (b) is absolute on its face. It simply does not confer any discretion on the sentencing judge to deny the extra one-level reduction so long as the subsection’s stated requirements are satisfied. United States v. Talladino, 38 F.3d 1255, 1263-64 (1st Cir.1994); accord United States v. Huckins, 53 F.3d 276, 279 (9th Cir.1995); United States v. Tello, 9 F.3d 1119, 1129 (5th Cir.1993). Under the guideline, therefore, the defendant must be given a two-level decrease under subsection (a) when he clearly accepts responsibility for his offense. After he qualifies for subsection (a), he also must be given an additional one-level decrease under subsection (b) when its criteria are met: (1) the defendant’s offense level is 16 or greater before the subsection (a) two-level reduction is considered; and (2) he assists authorities by either timely providing information to the prosecution about his involvement in the offense or timely notifying authorities of his intention to plead guilty. In this case the sentencing court" }, { "docid": "10846400", "title": "", "text": "denied him a two-level downward adjustment under U.S.S.G. § 3El.l(a) for acceptance of responsibility. This adjustment is applicable when “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The district court’s decision to withhold a reduction in the offense level will not be overturned unless clearly erroneous. See United States v. Gonzales, 12 F.3d 298, 300 (1st Cir.1993). The burden is on the defendant to demonstrate that he or she should have received the reduction. See United States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir.1991). Defendants greatly diminished their chances for receiving this adjustment by pleading not guilty and proceeding to trial. See U.S.S.G. § 3E1.1, Application Note 2 (“This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”). However, there are “rare situations” in which a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial. Id. Neither Rosario-Peralta nor Diaz-Morla presents this Court with such a “rare situation” because, even now on appeal, they maintain their factual innocence. Thus, they are not entitled to a downward adjustment for acceptance of responsibility. See United States v. Dodd, 111 F.3d 867, 870 (1st Cir.1997) (affirming the district court’s denial of a reduction for acceptance of responsibility based on the defendant’s “continued denial of factual guilt”); United States v. Perez-Perez, 72 F.3d 224, 228 (1st Cir.1995) (finding no error in the district court’s denial of a § 3El.l(a) adjustment when the defendant declared his innocence at sentencing). Defendants object to this result, claiming that they cannot be punished for preserving their constitutional right to appeal by maintaining their innocence. We join the circuits that have rejected this claim and found that § 3E1.1 does not prejudice or penalize a defendant for exercising his right to appeal. See, e.g., United States v. Davis, 960 F.2d 820, 829 (9th Cir.1992); United States v. McDonald, 935 F.2d 1212, 1222" }, { "docid": "8744174", "title": "", "text": "judge who made the acceptance of responsibility determination. United States v. Guadagno, 970 F.2d 214, 224 (7th Cir. 1992), cited in United States v. Velez, 46 F.3d 688, 693 (7th Cir.1995). “The sentencing judge is in a unique position to eváluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1, comment, (n.5), cited in. United States v. Akindele, 84 F.3d 948, 956 (7th Cir.1996). “[A]n appellate court is ill-equipped to assess whether a particular defendant is motivated by genuine acceptance of responsibility or by a self-serving desire to minimize his own- punishment. Unlike the district court judge, we do not enjoy a ‘front row seat’ from which to assess [the defendant’s] statements and demeanor.” United States v. Taylor, 72 F.3d 533, 551-52 (7th Cir.1995) (quoting United States v. White, 993 F.2d 147, 151 (7th Cir.1993)), quoted in Akindele, 84 F.3d at 957. In this appeal, Mr. Cunningham contends that, in spite of his efforts to avoid application of the recidivist statute to future firearm possessions and in spite of his behavior at his sentencing hearing, he was entitled to a departure for acceptance of responsibility because he never wavered from admitting the essential factual elements of his guilt and submitted a forceful written statement of remorse. Section 3E1.1 of the Sentencing Guidelines sets forth the requirements for an acceptance of responsibility reduction. A two-level reduction in offense level is mandated if the defendant “clearly demonstrates acceptance of responsibility.” U.S.S.G. § 3El.l(a). Another one-level reduction applies if, before the section 3El.l(a) two-level reduction, the offense level was 16 or greater and if the defendant cooperated with the government in his own prosecution by either “timely providing complete information to the government concerning his own involvement in the offense; or ... timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” U.S.SiG. § 3El.l(b). The language of the acceptance of responsibility guideline is mandatory, not permissive. Townsend, 73 F.3d at 755 (“When a defendant demonstrates that he is qualified for the decrease, the" }, { "docid": "11098760", "title": "", "text": "16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, decrease the offense level by 1 additional level. U.S.S.G. § 3E1.1. The district court, considering first the § 3E 1.1(b) criteria, expressly found that Mr. Townsend timely provided complete information to the government concerning his own involvement in the offense and timely notified authorities of his intention to plead guilty. The presentence report made clear that the offense level for Mr. Townsend was greater than 16. The court concluded, therefore, that Mr. Townsend had qualified for a subsection (b) decrease if he satisfied the subsection (a) demonstration of acceptance of responsibility. Concerning the § 3El.l(a) qualification, however, the court commented that “a defendant who falsely denies or frivolously contests relevant conduct that the Court determines to be true has acted in a manner inconsistent with acceptance of responsibility,” and then expressed its “difficulty in determining how [Mr. Townsend’s actions] can be anything other than falsely denying relevant conduct.” R.34 at 19. Nevertheless, after reviewing the defendant’s involvement with Beal and Robinson, the court decided that it would “reluctantly provide” the two-level reduction for acceptance of responsibility, but would not grant the additional § 3El.l(b) one-level decrease. R.34 at 19-20. 3. We review a sentencing court’s acceptance of responsibility determination, pursuant to § 3E1.1, as a factual determination subject to clear error analysis. United States v. Covarrubias, 65 F.3d 1362, 1367 (7th Cir.1995); United States v. Francis, 39 F.3d 803, 807 (7th Cir.1994). However, the question whether the district court considered the appropriate factors when it denied the additional downward adjustment under § 3E 1.1(b) requires our examination of the district court’s interpretation and application of the sentencing guidelines; that review is de novo. United States v." }, { "docid": "22597473", "title": "", "text": "minor importance of Volz’s statement and the cumulative evidence of Nielsen’s guilt, the admission of the contested statement, while improper, was harmless beyond a reasonable doubt. C. Acceptance of Responsibility Nielsen contends he should have received a three-level reduction in his offense level under the Sentencing Guidelines for acceptance of responsibility. The Guidelines allow for a two-level downward adjustment where a defendant “clearly demonstrates acceptance of responsibility for his offense,” U.S.S.G. § 3El.l(a). A qualifying defendant can be eligible for another one-level reduction for acceptance of responsibility, if his offense level is not greater than 16, prior to receiving any adjustments under subsection (a), and he assists the government by timely providing complete information regarding his involvement in the offense, or timely enters a guilty plea. U.S.S.G. § 3El.l(b). We review de novo the district court’s interpretation of the Sentencing Guidelines, see United States v. Ochoa-Gaytan, 265 F.3d 837, 841 (9th Cir.2001), but the factual basis for the district court’s decision regarding an acceptance of responsibility adjustment is reviewed for clear error. United States v. Velasco-Medina, 305 F.3d 839, 853 (9th Cir.2002). The “determination of the sentencing judge is entitled to great deference on review” because of the sentencing judge’s “unique position to evaluate a defendant’s acceptance of responsibility.” Id. (quoting U.S.S.G. § 3E1.1, cmt. n. 5). Conspicuously absent from the record on appeal is any significant evidence that Nielsen accepted responsibility for his crime. “Although a district court may not punish a defendant for failing to participate in fact-gathering at a presentence interview or for not pleading guilty, the defendant must carry the burden of demonstrating the acceptance of responsibility.” United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993). Nielsen did not carry his burden, and contrary to his assertions, the record shows he was not punished for asserting his right to trial. The sentencing colloquy indicates the district court considered the question and concluded that Nielsen was not eligible, at least in part because of his failure to assist authorities. To receive the two-point downward adjustment, a defendant must at least show contrition or remorse. See United" }, { "docid": "22145641", "title": "", "text": "specifically note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right.” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). United States v. Dahlman, 13 F.3d 1391, 1399 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994). Mr. Robertson asserts because he was willing to enter a plea of guilty, see, supra, pp. 1429-30, this evinces his acceptance of responsibility. The district court recognized, however, Mr. Robertson was not willing to plead to the indictment nor did he choose to plead guilty to some of the counts charged in the absence of a plea agreement. In addition, Mr. Robertson made no form of confession, nor did he ever actually admit guilt and accept responsibility prior to his conviction. See United States v. Ochoa-Fabian, 935 F.2d 1139, 1142 (10th Cir.1991) (reduction properly refused defendant who denied essential elements of offense, was convicted at trial, and only afterward admitted guilt and expressed remorse), cert. denied, — U.S. -, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992). Thus, we conclude the district court did not err in refusing to grant a two-point reduction for acceptance of responsibility. F Mr. Graves argues the district court erred in increasing his base offense level by two points for possession of a weapon under U.S.S.G. § 2Dl.l(b). He argues no evidence was presented indicating any weapon was used as an integral part of drug trafficking or that any weapon was shown to have increased the likelihood of success of any drug trafficking. We review the district court’s factual determination of whether an enhancement for possession of a dangerous weapon is warranted for clear error. United States v. Jackson, 11 F.3d 953, 956 (10th Cir.1993). In United States v. Roederer, 11 F.3d 973 (10th Cir.1993), we recognized “ ‘[w]eapon possession is established [for purposes of § 2Dl.l(b)(l) ]" }, { "docid": "23658451", "title": "", "text": "reduction in a defendant’s offense level if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). If a defendant qualifies for this two-level adjustment, the burden is on the government to demonstrate that the defendant was not entitled to the additional one-level reduction under § 3E1.1(b). See United States v. Colussi, 22 F.3d 218, 220 (9th Cir.1994). Section 3E1.1(b), in pertinent part, provides for an additional one-level adjustment if “the defendant has assisted authorities in the investigation or prosecution of his own misconduct by ... timely providing complete information to the government concerning his own involvement in the offense.” U.S.S.G. § 3E1.1(b)(1). “The key inquiry for § 3E1.1(b) is whether the confession was complete and timely.” United States v. Guadalupe Blanco-Gallegos, 188 F.3d 1072, 1077 (9th Cir.1999) (citing United States v. Eyler, 67 F.3d 1386, 1391 (9th Cir.1995), and United States v. Stoops, 25 F.3d 820, 823 (9th Cir.1994)). Here, Ruelas-Arreguin was entitled to the additional adjustment because, during questioning at the Yuma border patrol station, he made a timely and complete confession: he confirmed his prior criminal record and admitted by affidavit that he was in the United States illegally, that he had been deported previously, and that he had used a false name. Because his timely post-arrest statements admitted “all of the elements of the charged crime,” the fact that those statements were “not used at trial” is irrelevant, and the additional one-point reduction under § 3E1.1(b)(1) is mandatory. Id.; see also United States v. Chee, 110 F.3d 1489, 1494 (9th Cir.1997) (affirming denial of adjustment where “defendant did not timely provide complete information” concerning his crimes). Thus, we reverse the denial of the additional-one level adjustment under U.S.S.G. § 3El.l(b)(l) and remand for re-sentencing with instructions to award the additional one-level adjustment. V In sum, Ruelas-Arreguin was properly prosecuted in the Southern District of California. However, he was entitled to an additional one-level adjustment under U.S.S.G. § 3El.l(b)(l). Accordingly, we affirm his conviction but vacate his sen tence and remand for re-sentencing consistent with this opinion. AFFIRMED IN PART- VACATED AND REMANDED IN PART." }, { "docid": "21110902", "title": "", "text": "meaning of § 3El.l(b) depends on the facts of the individual case. See U.S.S.G. § 3E1.1, comment. (n.6) (explaining that timeliness under § 3El.l(b) “is context specific”). Generally speaking, however, “the conduct qualifying for a decrease in offense level under subsection (b)(1) or (2) will occur particularly early in the case.” Id. The key inquiry in determining whether a defendant qualifies for a reduction under § 3E1.1(b)(1) is whether the defendant provides information in sufficient time to aid the Government in the investigation or prosecution of the ease. See U.S.S.G. § 3El.l(b); United States v. Thompson, 60 F.3d 514, 517 (8th Cir.1995). This is so even if the information disclosed by the defendant is easily discoverable. See United States v. Stoops, 25 F.3d 820, 822-23 (9th Cir.1994). Thus, a defendant who delays the disclosure of information to the Government until shortly before a scheduled trial does not qualify for the reduction. See United States v. Hopper, 27 F.3d 378, 384-85 (9th Cir.1994); see also Thompson, 60 F.3d at 517 (holding that a defendant who provided no information until after entering his guilty plea and securing a grant of immunity was not entitled to a one-level reduction under § 3El.l(b)(l)). Lancaster argues that he acted timely under (b)(1) because he pled guilty and provided information to the Government almost immediately after the denial of his motions to suppress. To conclude that his actions were not timely, Lancaster maintains, is to penalize him for attempting to protect his constitutional rights. Accordingly, Lancaster suggests that the timeliness of his cooperation should be measured from the day his suppression motions were denied. We disagree. The availability of a reduction for acceptance of responsibility “merely formalizes and clarifies a tradition of leniency extended to defendants who express genuine remorse and accept responsibility for their wrongs.” United States v. Crawford, 906 F.2d 1531, 1534 (11th Cir.1990). Lancaster is not being punished for choosing to assert his constitutional rights by filing the motions to suppress; “he merely does not reap the benefit of the additional one-point reduction given to others who volunteer information about their conduct in" }, { "docid": "23390432", "title": "", "text": "Point The district court awarded Gilbert a two-point reduction in his offense level for acceptance of responsibility. Gilbert contends, however, that he is entitled to a three-point reduction under U.S.S.G. § 3El.l(b) either because he timely provided information to the Government concerning his offense, U.S.S.G. § 3E1.1(b)(1), or because he timely notified the Government of his intention to plead guilty, U.S.S.G. § 3El.l(b)(2). The timeliness of these acts is an issue of fact, the resolution of which we review for clear error only. See United States v. McConaghy, 23 F.3d 351, 353 (11th Cir.1994). Apart from a bare assertion that he spoke to the DEA, there is no record evidence to suggest that Gilbert provided any information to the Government concerning his offense, and we thus reject his challenge based on that ground. The question of the timeliness of Gilbert’s guilty plea requires a little more discussion. Gilbert- was indicted on December 1, 1995. He was arraigned on January 18, 1996. On January 24, trial was set for March 4. On February 13, he moved to suppress evidence. The court denied this motion on March 1, and on March 4 — the day of trial — Gilbert pleaded guilty. There is no record evidence of when Gilbert notified the Government of an intent to plead guilty, but the record shows that the Government filed an exhibit list and notice of prior convictions on March 1. As a general rule, pleas on the eve of trial are not timely. See United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir.1994); United States v. Donovan, 996 F.2d 1343, 1345 (1st Cir.1993). Pleas at that time do not help either the Government to avoid, trial preparation or the court to manage its schedule efficiently, the two purposes served by the § 3El.l(b) additional one-point reduction. See McConaghy, 23 F.3d at 353. Gilbert contends nonetheless that in his case he pleaded guilty very soon after the denial of his motion to suppress, and that the plea was therefore timely; to conclude otherwise, he contends, would penalize him for exercising a right to seek suppression" }, { "docid": "23544083", "title": "", "text": "Cir.1994). We review de novo the district court’s application of the Sentencing Guidelines. United States v. Kimple, 27 F.3d 1409, 1411 (9th Cir.1994). Discussion This case presents the question of whether a defendant can qualify for the one-level additional adjustment pursuant to section 3El.l(b)(2) if the defendant does not notify authorities of an intent to plead guilty. We hold that a defendant cannot. Section 3E1.1 of the Sentencing Guidelines provides that a defendant qualifies for a two-level downward adjustment “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” USSG § 3El.l(a). If a defendant qualifies for the two-level adjustment under subsection (a), then he is entitled to an additional one-level adjustment if: the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: * * * (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. USSG § 3El.l(b). The third level of adjustment is mandatory if the circumstances apply. United States v. Colussi, 22 F.3d 218, 219 (9th Cir.1994). Under the language of the Guideline, Villasenor-Cesar is not entitled to the additional one-level adjustment pursuant to subsection (b)(2) because he did not “timely notify! ] authorities of his intention to enter a plea of-guilty.” Villasenor-Cesar, however, does not confront this language, but instead relies on the language of the Guideline’s Application Notes to argue that he is entitled to the third level even though he went to trial. Application Note 2 states: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This" }, { "docid": "8744175", "title": "", "text": "was entitled to a departure for acceptance of responsibility because he never wavered from admitting the essential factual elements of his guilt and submitted a forceful written statement of remorse. Section 3E1.1 of the Sentencing Guidelines sets forth the requirements for an acceptance of responsibility reduction. A two-level reduction in offense level is mandated if the defendant “clearly demonstrates acceptance of responsibility.” U.S.S.G. § 3El.l(a). Another one-level reduction applies if, before the section 3El.l(a) two-level reduction, the offense level was 16 or greater and if the defendant cooperated with the government in his own prosecution by either “timely providing complete information to the government concerning his own involvement in the offense; or ... timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” U.S.SiG. § 3El.l(b). The language of the acceptance of responsibility guideline is mandatory, not permissive. Townsend, 73 F.3d at 755 (“When a defendant demonstrates that he is qualified for the decrease, the guideline orders the decrease.”). Nevertheless, the acceptance of responsibility reduction is “not a bright line determination.” Velez, 46 F.3d at 694. The Guidelines offer a nonexclusive list of actions that could support a finding of acceptance of responsibility. However, “the sentencing judge is required to look beyond formalistic expressions of culpability and to determine whether, the defendant has manifested an acceptance of personal responsibility for his offense in a moral sense.” United States v. Hammick, 36 F.3d 594, 600 (7th Cir.1994) (citing United States v. Panadero, 7 F.3d 691, 694 (7th Cir.1993)). It is the defendant’s burden to “clearly demonstrate” acceptance of responsibility by a preponderance of the evidence. United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993), cited in United States v. Morris, 76 F.3d 171, 176 (7th Cir. 1996). As a general rule, the acceptance of responsibility reduction is not meant to be available for defendants who go to trial to contest “the essential factual elements of guilt.” U.S.S.G. § 3E1.1, comment, (n.2); Velez, 46 F.3d at 694; Gomez, 24 F.3d at" }, { "docid": "23390431", "title": "", "text": "correct that the district court could have departed downward if it had found Gilbert’s criminal history to be overrepresented. See U.S.S.G. § 4A1.3 (policy statement) (downward departure may be appropriate for defendant with extensive history of petty crime); United States v. Lindia, 82 F.3d 1154, 1165 (1st Cir.1996). But the record does not reveal such a finding. The court’s statement followed Gilbert’s counsel’s argument that the court should depart downward because of Gilbert’s overrepresented criminal history. Even so, the district court did not suggest that Gilbert’s criminal history did not accurately reflect the seriousness of his conduct. Rather, the court simply conveyed its discontent with the policy choices that Congress has made in imposing high sentences for relatively minor crimes, thus requiring spending for prisons instead of more constructive programs. Disagreement with the policy choices underlying the Sentencing Guidelines and sentencing statutes is not a ground for downward departure, and the court properly determined that it lacked authority to depart downward. See United States v. Gonzalez-Lopez, 911 F.2d 542, 551 (11th Cir.1990). 3. Extra Acceptance-of-Responsibility Point The district court awarded Gilbert a two-point reduction in his offense level for acceptance of responsibility. Gilbert contends, however, that he is entitled to a three-point reduction under U.S.S.G. § 3El.l(b) either because he timely provided information to the Government concerning his offense, U.S.S.G. § 3E1.1(b)(1), or because he timely notified the Government of his intention to plead guilty, U.S.S.G. § 3El.l(b)(2). The timeliness of these acts is an issue of fact, the resolution of which we review for clear error only. See United States v. McConaghy, 23 F.3d 351, 353 (11th Cir.1994). Apart from a bare assertion that he spoke to the DEA, there is no record evidence to suggest that Gilbert provided any information to the Government concerning his offense, and we thus reject his challenge based on that ground. The question of the timeliness of Gilbert’s guilty plea requires a little more discussion. Gilbert- was indicted on December 1, 1995. He was arraigned on January 18, 1996. On January 24, trial was set for March 4. On February 13, he moved" }, { "docid": "23373404", "title": "", "text": "the district court found to be credible testified that Larry had signalled. Such signalling, we conclude, qualifies as an obstruction of justice. See id. (we review de novo what conduct constitutes an obstruction of justice). The prosecution was not required to prove that Larry actually obstructed justice; a showing of attempt is sufficient to warrant the two-level increase. United States v. Baker, 894 F.2d 1083, 1084 (9th Cir.1990). The two-level enhancement was justified. C. Acceptance of Responsibility. Finally, Larry argues that the district court erred in denying him a three-level reduction in his base offense level for acceptance of responsibility. The district court did not err. A defendant is entitled to a two-level reduction if he shows acceptance of responsibility by, inter alia, truthfully admitting the conduct that comprised the offense, surrendering to authorities promptly after committing the offense, or assisting the authorities in their investigation of his case. U.S.S.G. § 3El.l(a), (d), (e), comment, (n.l) (1994). He is entitled to an additional one-level reduction if, in addition to qualifying for the two-level reduction, he assisted in the investigation or prosecution of his case by “timely providing complete information to the government concerning his own involvement in the offense” or by timely advising of his intent to plead guilty. U.S.S.G. § 3El.l(b) (1994). The district court did not clearly err in finding that Larry had met none of the requirements. See United States v. Vance, 62 F.3d 1152, 1157 (9th Cir.1995) (indicating that a denial of reduction for acceptance of responsibility is reviewed for clear error). Larry did nothing prior to trial to indicate acceptance of responsibility. He denied guilt and put the government to its proof. See U.S.S.G. § 3E1.1, Application Note 2 (1987). Even after his conviction, Larry did not take complete responsibility for his actions; he continued to maintain that he kicked the victim only once in the stomach, despite eyewitness testimony to the contrary. He also falsely stated in his letter to the district court that he did not know the person whom he was kicking. Lying about offense conduct weighs heavily against a finding of" }, { "docid": "22167606", "title": "", "text": "is inadequate under Wacker. Therefore, in light of Wacker, we must decline to resolve the issues raised by the parties and remand the ease to the district court with directions to make specific findings indicating the factual basis for its conclusion Mr. Hickman was a “manager” within the meaning of U.S.S.G. § 3Bl.l(b). C. Acceptance of Responsibility Mr. Hickman contends the district court erred when it denied his request for a reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. To receive such a reduction, the defendant must prove by a preponderance of the evidence that he has “clearly demonstrate[d] acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a); United States v. Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 227, 130 L.Ed.2d 152 (1994). Whether the defendant has clearly demonstrated acceptance of responsibility is a factual question we review only for clear error, United States v. McCollom, 12 F.3d 968, 972 (10th Cir.1993), and doing so we remain mindful that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, comment, (n. 5). Mr. Hickman’s presentence report states that “[t]he adjustment for acceptance of responsibility is not available for this defendant, as he put the government to the burden of proving his guilt at trial.” Mr. Hickman objected to this statement on the ground that “the acceptance of responsibility reduction should not be automatically foreclosed by insisting upon a trial.” The Probation Department responded by citing, inter alia, U.S.S.G. § 3E1.1, comment, (n. 2), which provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his" }, { "docid": "4158932", "title": "", "text": "a two-level enhancement under § 2Dl.l(b)(l). Wetwattana also challenges the district court’s denial of the additional one-level reduction for timely acceptance of responsibility. Guideline § 3E1.1(b)(2) provides that a defendant, after receiving a two-level reduction for acceptance of responsibility, may in certain circumstances be entitled to an additional one-level reduction if he “timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” The defendant must establish by a preponderance of the evidence that he is entitled to the one-level reduction under § 3E1.1(b)(2). See, e.g., United States v. Francis, 39 F.3d 803, 807 (7th Cir.1994); United States v. Robinson, 20 F.3d 270, 273 (7th Cir.1994). The district court’s acceptance of responsibility determination is a factual finding, which we review for clear error. United States v. Covarrubias, 65 F.3d 1362, 1367 (7th Cir.1995); United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir.1993); see also U.S.S.G. § 3E1.1 note 5 (acceptance of responsibility determination of sentencing judge should be given “great deference” on review). Application Note Six to § 3E1.1 reveals that “[i]n general, the conduct qualifying for a decrease in offense level under [sec. 3E1.1(b)(2) ] will occur particularly early in the ease.” In this case, Wetwattana did not indicate an intention to plead guilty until March 16, 1994, more than eight months after his initial arraignment on June 8, 1993. His guilty plea was entered on March 30, 1994, only five days before his trial was scheduled to begin. Wetwattana correctly notes, however, that § 3El.l(b)(2) defines timeliness in functional, rather than temporal, terms. See United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir.1994) (equating timeliness with government’s ability to avoid preparing for trial and court’s ability to allocate its resources efficiently); United States v. Tello, 9 F.3d 1119, 1125 (5th Cir.1993) (same); see also Francis, 39 F.3d at 808 (holding guilty plea not timely unless it served purpose of conserving government and court resources); but see United States v. McConaghy, 23 F.3d 351, 353 (11th Cir.1994) (finding" } ]

[ { "docid": "12045106", "title": "", "text": "no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate.... 18 U.S.C. § 3583(d); see also U.S.S.G. § 5D1.3(b); United States v. Okoko, 365 F.3d 962, 965 n. 5 (11th Cir.2004) (“Because ... § 5D1.3 mirrors the language used in this statute, we consider it together with 18 U.S.C. § 3583(d) in reviewing the district court’s imposition of a special condition on a supervised release.”). III. Thus, the district court was authorized to impose its reporting requirement under this “catchall” provision in § 3583(d) so long as the requirement satisfied the above statutory criteria. See United States v. Zinn, 321 F.3d 1084, 1089 (11th Cir.2003) (recognizing that, under § 3583(d), the “district court may impose any condition of supervised release it deems appropriate so long as it comports with the factors enumerated in § 3553(a)”). In this respect, not only did the district court apparently consider its reporting requirement to be “appropriate,” but this requirement is also encompassed by two discretionary conditions of probation in 18 U.S.C. § 3563(b). See 18 U.S.C. § 3563(b)(15) (authorizing the court to require the defendant to “report to a probation officer as directed by the court or the probation officer”); id. § 3563(b)(17) (authorizing the court to require the defendant to “notify the probation officer promptly of any change in address or employment”). Guzman contends that the court did not satisfy the first statutory criterion in § 3583(d) because its reporting requirement was not reasonably related to the applicable § 3553(a) factors. The applica ble § 3553(a) factors that the court must consider are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes" } ]

[ { "docid": "7628849", "title": "", "text": "A review of the record demonstrates that all of ISI’s investors were victims of a common scheme to be defrauded. We note that although in two of Dahlstrom’s counts he was acquitted, there is an overwhelming amount of evidence that shows that all of the investors were affected by Dahlstrom’s actions. Since the whole of the investors shared a common interest in ISI and the evidence is sufficient to establish that Dahlstrom’s actions affected all of their investments, we conclude that a common plan to defraud existed. Therefore, we hold that the district court did not abuse its discretion by ordering Dahlstrom to pay restitution. A review of the record shows that Karla Dahlstrom is subject to a supervised release as part of her sentence. In United States v. Bok, 156 F.3d 157, 166 (2d Cir.1998), the court determined that although restitution may not be directly permitted under § 3663(a), a district court may order restitution within the context of a supervised release. Title 18 U.S.C. § 3583(d) explicitly provides that the court may order, as a further condition of supervised release, “any condition set forth as discretionary condition of probation in § 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). One of the discretionary conditions referred to in § 3563(b) is the requirement that the defendant make restitution to a victim of the offense. 18 U.S.C. § 3563(b)(2). The Second Circuit interpreted §§ 3583(d) and 3563(b) to permit a restitution award regardless of the limitations set out in § 3663(a). Id. We agree with the Second Circuit’s rationale. In light of the fact that Karla Dahlstrom is subject to a supervised release, and the presence of evidence in the record supporting the finding that she was involved in a common plan or scheme to defraud the investors, we hold that the district court did not abuse its discretion by ordering her to pay restitution to the victims. Accordingly, for the aforementioned reasons, we AFFIRM the district court’s decision in all respects. . Inferno Engineering (\"IEC”) was incorporated" }, { "docid": "6627610", "title": "", "text": "deprivation of liberty than is reasonably necessary for the purposes set forth in section 3552(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a); any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate. 18 U.S.C. § 3583(d) (emphasis added). The district court may, therefore, have been referring to the \"discretionary conditions of probation” prong or to the \"any other condition\" catch-all prong. Since, however, the condition of probation being imposed was \"restitution,” we conclude, for the reason we state infra, that \"restitution\" must have been imposed under § 3563(b). . The dissent voices the concern that \"a person who knowingly sells stolen merchandise should not be permitted to profit from the sale.... The taxpayer ... should not have to bear the cost of 'buy money.' The ... money involved has gone into the defendant’s pocket and to the extent practicable should be recovered.” Dissent at 173. We are not unsympathetic with this point of view. We note, however, that in future cases the district court may consider imposing a fine which is equivalent to the amount of any buy money a defendant has received from the Government. See U.S.S.G. § 5E1.2. . Because the district court may choose to consider other conditions of supervised release, we remand rather than reverse. We note, however, that at sentencing the district judge noted that Cottman did not have the ability to pay a fine. Appendix at 59. LUDWIG, District Judge, concurring and dissenting: I join in the majority’s decision on lack of mootness and affirmance of the application of the four level “in the business” Guidelines enhancement. U.S.S.G. § 2B1.1. I respectfully dissent from its decision to vacate the condition of supervised release requiring repayment to the government of $32,420 in “buy money” provided to defendant by the FBI. Defendant received those monies, in various installments, from an undercover agent in exchange for 231 stolen TV boxes— the subject matter" }, { "docid": "6627612", "title": "", "text": "of the conspiracy charge to which defendant pleaded guilty. The crime occurred in 1995, and the defendant was sentenced on July 22,1996. The majority holds that restitution of “buy money” is not an authorized condition of supervised release under the Victim Witness Protection Act of 1982, 18 U.S.C. §§ 3663-3664 (1985 & supp.1995) or the supervised release statute, 18 U.S.C. § 3583 (1985 & supp.1995). Its reasoning is that the expenditure of “buy money” is a cost of law enforcement and does not qualify the government as a “victim” — the traditional prerequisite of restitution. I agree with that analysis as relates to the VWPA. However, I do not believe it is necessary to decide that issue in applying the supervised release statute to this case. First, the sentencing judge did not intend to order “restitution” in the victim-related sense of the word — which is the underlying premise of the majority’s conclusion. Second, I would hold that the repayment of “buy money” is authorized as a discretionary condition of supervised release under § 3588(d)(3). 18 U.S.C. I The sentencing judge stated, after discussing the victim-restitution cases: [T]he FBI, I find, is not a victim of defendant Cottmaris offense and the “buy money” is not recoverable under the VWPA. Therefore, I agree with defendant’s objection to the award of restitution to the FBI. Restitution should be made to the owners of the cable boxes.... I’m ordering that the boxes be returned to their rightful owners as restitution. Appendix at 46-47. The sentencing judge then reviewed the “buy-money” decision in United States v. Daddato, 996 F.2d 903 (7th Cir.1993) and concluded that authority for a repayment order was conferred by the supervised release statute provision: “any other condition [the court] considers to be appropriate.” 18 U.S.C. § 3583(d)(3). The sentencing judge — as the majority stresses-referred at times to the repayment as “restitution” and the repayment is so characterized on the judgment of sentence form. Nevertheless, the judge’s sentencing statement unmistakably shows the intent to follow Daddato and to exercise “any other condition” discretion, not to order restitution to the FBI" }, { "docid": "6627618", "title": "", "text": "The year after Daddato, a panel of the Sixth Circuit Court of Appeals granted § 2255 relief where a supervised release condition to repay “buy money” was imposed as to four drug charges, although three of the charges had been dismissed in exchange for the defendant’s guilty plea to the fourth. Gall v. United States, 21 F.3d 107 (6th Cir.1994). The decision, after confining “restitution” as a condition of supervised release to crimes “charged and convicted,” described the second part of its holding: “the government is not a victim to which a district court may order a defendant to pay restitution for the purpose of recovering drug ‘buy money’ and other costs of investigation voluntarily paid out.” 21 F.3d at 108 (bold in original). In much the same way as our majority, which cites Gall for this point, it ignores Daddato and equates repayment of “buy money” with traditional “restitution”; it then summarily conflates § 3563(b)(3) with the VWPA because of the incorporation by reference of § 3563(b)(3) — “restitution to the victim.” The concurrence in Gall, however, focuses on Daddato and criticizes it for having resorted to the “any other condition” provision of § 3583(d). Interestingly, the rationale is not that the restoration of “buy money” must be classified or construed to be the same as victim-related restitution. Under § 3583(d)(2) ... a sentencing judge can only order additional “appropriate” conditions of supervised release that “involve no greater deprivation of liberty than is reasonably necessary for the purposes of: (1) affording adequate deterrence to criminal conduct; (2) protecting the public from further crimes of the defendant; and (3) providing the defendant with ... training ... care ... or treatment.... * * * * * * Ordering a criminal defendant, as a condition of supervised release, to repay the government’s buy money or other investigative costs deprives the defendant of liberty during the period of supervised release, yet does not advance any of these three purposes.... Indeed, such a deprivation of liberty ... could actually encourage the defendant to commit further crimes as a means of repaying such an onerous" }, { "docid": "6627614", "title": "", "text": "as a victim. Appendix at 47-50, 59. The significance of the distinction is more than semantic. By incorporating by reference the conditions authorized in the probation statute, the supervised release statute also empowers the sentencing judge ‘restitution to the victim.” 18 U.S.C. § 3563(b)(3). Under the VWPA cases, that provision, by its own terminology, could not be utilized to order a repayment of “buy money.” Despite the finding of the sentencing judge that the FBI was not a “victim” and was not entitled to victim-related “restitution,” the majority conclusively infers that the condition was imposed under § 3563(b)(3) and was, accordingly, invalid. to order Moreover, the idea of restitution, which historically has involved redress to a victim, has been evolving to include victimless reparations. The sentencing judge's sporadic use of “restitution” in a non-victim-related sense to refer to the repayment of “buy money” has good precedent. In Daddato, now Chief Judge Posner’s decision characterizes the repayment of “buy money” as “in the nature of restitution,” observing that “[we] need not determine whether such an order is also classic ‘restitution’____” 996 F.2d at 903, 905. See United States v. Brooks, 114 F.3d 106, 108 (7th Cir.1997) (“In Daddato, after noting that an order to repay buy money as “restitution” under the[VWPA] was not cricket, we found that such an order would nevertheless pass muster as a condition of supervised release” (bold in original)). The majority’s predicate that the sentencing judge must have intended to act under 18 U.S.C. § 3563(b) simply is not well founded. The sentencing judge was well aware of both the traditional compensatory and the victimless, or nontraditional, meaning of “restitution” — and clearly did not believe he was invoking § 3563(b). II Daddato dealt with precisely the same question as is presented here: Pursuant to his plea of guilty, James Dad-dato was convicted of ... selling hallucinogenic mushrooms and sentenced to 16 months in prison to be followed by three years of supervised release. His appeal challenges one of the conditions of supervised release: that he repay the $3,650 that he received from law enforcement officers in" }, { "docid": "6627615", "title": "", "text": "is also classic ‘restitution’____” 996 F.2d at 903, 905. See United States v. Brooks, 114 F.3d 106, 108 (7th Cir.1997) (“In Daddato, after noting that an order to repay buy money as “restitution” under the[VWPA] was not cricket, we found that such an order would nevertheless pass muster as a condition of supervised release” (bold in original)). The majority’s predicate that the sentencing judge must have intended to act under 18 U.S.C. § 3563(b) simply is not well founded. The sentencing judge was well aware of both the traditional compensatory and the victimless, or nontraditional, meaning of “restitution” — and clearly did not believe he was invoking § 3563(b). II Daddato dealt with precisely the same question as is presented here: Pursuant to his plea of guilty, James Dad-dato was convicted of ... selling hallucinogenic mushrooms and sentenced to 16 months in prison to be followed by three years of supervised release. His appeal challenges one of the conditions of supervised release: that he repay the $3,650 that he received from law enforcement officers in payment for mushrooms that they bought from him in order to obtain conclusive evidence of his guilt. The statute governing supervised release empowers the sentencing judge to impose as a condition of such release any condition authorized as discretionary condition of probation plus “any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). Obviously the language is broad enough to encompass the requirement that the defendant make good the government’s “buy money”; nor could the imposition of such a requirement be thought an abuse of discretion — it merely asks the defendant (if he is financially able, once his release from prison enable him to obtain a paying job) to make good the expense to which he put the government by violating the laws that prohibit drug trafficking in a selected subset of mind-altering drugs. 996 F.2d at 903. The opinion then rejects the argument that repayment of “buy money” is beyond the sentencing judge’s power because “any other condition” must be comparable, by virtue of “ejusdem generis,” to the 20 specific conditions" }, { "docid": "6627616", "title": "", "text": "payment for mushrooms that they bought from him in order to obtain conclusive evidence of his guilt. The statute governing supervised release empowers the sentencing judge to impose as a condition of such release any condition authorized as discretionary condition of probation plus “any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). Obviously the language is broad enough to encompass the requirement that the defendant make good the government’s “buy money”; nor could the imposition of such a requirement be thought an abuse of discretion — it merely asks the defendant (if he is financially able, once his release from prison enable him to obtain a paying job) to make good the expense to which he put the government by violating the laws that prohibit drug trafficking in a selected subset of mind-altering drugs. 996 F.2d at 903. The opinion then rejects the argument that repayment of “buy money” is beyond the sentencing judge’s power because “any other condition” must be comparable, by virtue of “ejusdem generis,” to the 20 specific conditions that precede it. Daddato explains that the return of “buy money” is comparable to, albeit not the same as, traditional “restitution.” An order to repay the government’s “buy money” is similar in requiring the defendant to convey something of value to the community, rather than to his victims (if any there be) specifically. State v. Connelly, 143 Wis.2d 500, 421 N.W.2d 859 (App. 1988). * * * * * * On the one hand, it seems unrealistic to describe the defendant as having wrongfully taken money eagerly tendered to him so that he could incriminate himself. On the other hand, it was money that he obtained through criminal activity and therefore had no right to keep. No matter. The list in section 3563(b) is not limited to restitution, or even to conditions that resemble restitution (which this, at the very least, does); it is enough that the order to repay the buy money is of the same general kind as the items in the list, and it is. 996 F.2d at 905 (bold in original)." }, { "docid": "6627597", "title": "", "text": "18 U.S.C. § 3583(d), Cottman would be ordered to repay the FBI as a condition of his supervised release since this condition involved “no greater deprivation of liberty than is reasonably necessary for the purposes of affording adequate deterrence to criminal conduct.” Appendix at 50. The district court chose not to award restitution under the VWPA because the prevailing view is that ordinarily the Government cannot be a “victim” under the VWPA when its losses were incurred as a result of its having provided the “buy” money used in a government sting which led to the defendant’s arrest. See Appendix at 46 (“[T]he FBI, I find, is not a victim of defendant Cottman’s offense and the $34,740 [sic] is not recoverable under the VWPA.”); Appellee’s Br. at 26 (conceding in respect to restitution orders requiring repayment of buy money as a condition of probation, “such disgorgement is arguably improper under the restitution statutes, given that they focus squarely on compensation to victims and not punishment”). We have not yet had to determine whether the VWPA allows restitution to the government for funds expended in a sting, such as we have here. However, the other circuits, which have considered the question, have held that investigative costs and voluntary expenditures by the government to procure evidence are not losses. See, e.g., United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997); United States v. Gibbens, 25 F.3d 28, 36 (1st Cir.1994); United States v. Meacham, 27 F.3d 214, 218 (6th Cir.1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir.1990). We will follow this well considered construction of the VWPA and hold that, when the government chooses to apprehend offenders through a sting operation, the government is not a “victim” under the provisions of the VWPA. However, the district court awarded restitution, not under the VWPA, but under 18 U.S.C. § 3583(d). Section 3583(d) of the supervised release statute authorizes the imposition of certain of the discretionary conditions of probation, set forth in 18 U.S.C. § 3563(b) (1985 & supp.1995). When Cott-man was sentenced, § 3563(b)(3) permitted the district court" }, { "docid": "4325166", "title": "", "text": "had the authority to entertain such a motion for clarification and to issue an order responding to Mr. Lilly’s inquiry. When Mr. Lilly was sentenced in 1993, the criminal code authorized the district court to impose an obligation of restitution as a condition of Mr. Lilly’s supervised release. See 18 U.S.C. § 3583(d) (1993) (referencing 18 U.S.C. § 3563, which sets forth conditions for probation, and authorizing the district court to impose a number of conditions listed in § 3563, including restitution, as a condition of a defendant’s supervised release); see also U.S. Sentencing Guidelines Manual § 5El.l(a)(2) (1992) (requiring the sentencing court to include a restitution requirement as a condition of a defendant’s supervised release). Moreover, under § 3583, district courts retained the authority to terminate, modify or revoke a defendant’s term of supervised release. See 18 U.S.C. § 3583(e) (1993). Although Congress has amended various provisions of § 3583, including § 3583(e), since 1993, those changes do not have a substantive impact on our discussion here, and the district court’s authority to terminate, modify or revoke a term of supervised release under § 3583(e) remains essentially the same under the current statute. In addition to their authority over the term of supervised release, district courts continue to have the authority to modify, reduce or enlarge the conditions of supervised release at any time prior to the expiration or termination of a defendant’s term of supervised release. See 18 U.S.C. § 3583(e)(2); United States v. Navarro-Espinosa, 30 F.3d 1169, 1171 (9th Cir.1994) (holding that, even if the district court lacked jurisdiction to correct a defendant’s sentence under Fed.R.Crim.P. 35(c), § 3583(e)(2) authorized the court to modify the conditions of a defendant’s supervised release); United States v. Allen, 2 F.3d 538, 539-40 (4th Cir.1993) (holding that § 3583(e)(2) allows a district court to modify the conditions of supervised release without extending the term of that release). As the text of § 3583 demonstrates, a district court retains ultimate responsibility for ensuring that a defendant has complied with the conditions of his supervised release. See Gozlon-Peretz v. United States, 498 U.S." }, { "docid": "8982801", "title": "", "text": "390 F.3d 964, 965-66 (7th Cir.2004); United States v. Morgan, 384 F.3d 439, 444 (7th Cir.2004); Okoro v. Callaghan, 324 F.3d 488, 490-91 (7th Cir.2003); United States v. Felici, 208 F.3d 667 (8th Cir.2000). The defendant has not done that. He could not. The money was found in his home together with a large quantity of illegal drugs, a digital scale, and other evidence of drug trafficking. Clearly the money was proceeds from the sale of drugs, and as such expressly forfeitable, 21 U.S.C. § 881(a)(6), and hence not his lawful property. E.g., United States v. Dusenbery, 223 F.3d 422, 425 (6th Cir.2000) (per curiam). So it couldn’t be the basis of a setoff. The government concedes, however, that the duty to repay the buy money should have been made a condition of supervised release rather than being embodied in an order of restitution. The buy money was an investigatory expense rather than property taken from, or damage to the property of, a vietim of thé defendant’s crime. United States v. Brooks, 114 F.3d 106, 108 (7th Cir.1997); United States v. Daddato, 996 F.2d 903 (7th Cir.1993); see also Gall v. United States, 21 F.3d 107, 111-12 (6th Cir.1994); United States v. Salcedo-Lopez, 907 F.2d 97 (9th Cir.1990); see generally United States v. Scott, 405 F.3d 615, 618-19 (7th Cir.2005). Either way, the government is entitled to the return of the money. But the defendant is better off owing the money as a condition of supervised release; for example, it means he doesn’t have to pay it until his period of supervised release begins, and thus after he is released from prison, whereas a judge may order restitution to be paid in full immediately upon sentencing. 18 U.S.C. §§ 3664(f)(2), (3); United States v. Sensmeier, 361 F.3d 982, 991 (7th Cir.2004); United States v. Jones, 289 F.3d 1260, 1265-66 (11th Cir.2002) (per curiam); United States v. Martin, 278 F.3d 988, 1006 (9th Cir.2002). The order of restitution is modified as indicated in the preceding paragraph, and with respect to the prison sentence a limited remand is ordered in accordance with" }, { "docid": "3678766", "title": "", "text": "a sentencing court to impose such restitution as a condition of supervised release. See U.S.S.G. § 5E1.1(a)(2). . On page 7 of the district court’s Memorandum of Opinion, the court states: \"Gall's restitution order is part of a sentence ordered pursuant to a plea agreement between the Government and Gall. Therefore, Gall agreed to the amount of restitution in his deal with the Government.” NATHANIEL R. JONES, Circuit Judge, concurring. I join the majority opinion, but I write separately to address a recent development in the Seventh Circuit. In United States v. Daddato, 996 F.2d 903 (7th Cir.1993), the court addressed the same issue that is presently before us, namely the issue of whether the government is entitled to restitution of drug buy money spent investigating a criminal defendant, as a condition of supervised release under 18 U.S.C. § 3583. The court recognized that the VWPA does not authorize restitution for buy money, but found that § 3583 provides a basis for such restitution that is not found in the VWPA: The statute governing supervised release empowers the sentencing judge to impose as a condition of such release any condition authorized as a discretionary condition of probation plus “any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). Obviously the language is broad enough to encompass the requirement that the defendant make good the government’s “buy money”. 996 F.2d at 904. The court admitted that returning buy money to the government is not “classic restitution” in that the government, far from being a victim, eagerly tendered the money so that the defendant would incriminate himself. Id. at 905. Rather, the court regarded the return of the government’s buy money as a condition of release akin to requiring community service — “for the benefit of the community but not necessarily for the benefit of the victims of his crime.” Id. Thus the Daddato court focussed on the catch-all phrase in § 3583(d) — “and any other condition [the court] considers to be appropriate.” It apparently overlooked, however, the fact that this catch-all phrase is expressly limited by subsections (d)(1)," }, { "docid": "13097356", "title": "", "text": "McKissic, 428 F.3d 719, 725-26 (7th Cir.2005), and that, consequently, he was obliged to expressly object to the requirement at the sentencing hearing on pain of forfeiting all but plain error review if he did not. See, e.g., United States v. Ross, 475 F.3d 871, 873 (7th Cir.2007); McKissic, 428 F.3d at 721-22. But the government has not made that particular argument, and so we now take up the merits of Paul’s objection. We review the conditions a district court has imposed on a defendant’s supervised release for abuse of discretion. E.g., United States v. Hook, 471 F.3d 766, 770 (7th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2081, 167 L.Ed.2d 771 (2007). A court abuses its discretion when it resolves a matter in a way that no reasonable jurist would, or when its decision strikes us as fundamentally wrong, arbitrary, or fanciful. Greviskes v. Universities Research Ass’n, Inc., 417 F.3d 752, 758 (7th Cir.2005) (quoting Maynard v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004)). 18 U.S.C. § 3583(d) identifies a number of mandatory conditions that a court “shall” impose on a defendant’s supervised release along with a second set of discretionary conditions that a court “may” impose in appropriate circumstances. Drug testing is one of those conditions that a court must impose, although Congress has granted the district court discretion to exempt a defendant from complying with this particular condition when the court is convinced a defendant is unlikely to abuse a controlled substance. Section 3583(d) states, in relevant part: The court shall also order, as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug test thereafter (as determined by the court) for use of a controlled substance. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in section 3563(a)(4). Although the statute cross-references section 3563(a)(4), that is a mistake, for the intended cross-reference obviously is to section 3563(a)(5), a" }, { "docid": "6627598", "title": "", "text": "allows restitution to the government for funds expended in a sting, such as we have here. However, the other circuits, which have considered the question, have held that investigative costs and voluntary expenditures by the government to procure evidence are not losses. See, e.g., United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997); United States v. Gibbens, 25 F.3d 28, 36 (1st Cir.1994); United States v. Meacham, 27 F.3d 214, 218 (6th Cir.1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir.1990). We will follow this well considered construction of the VWPA and hold that, when the government chooses to apprehend offenders through a sting operation, the government is not a “victim” under the provisions of the VWPA. However, the district court awarded restitution, not under the VWPA, but under 18 U.S.C. § 3583(d). Section 3583(d) of the supervised release statute authorizes the imposition of certain of the discretionary conditions of probation, set forth in 18 U.S.C. § 3563(b) (1985 & supp.1995). When Cott-man was sentenced, § 3563(b)(3) permitted the district court to order a defendant as a condition of probation to “make restitution to a victim of the offense under sections 3663 and 3664....” The District Court employed the term “restitution” when imposing repayment at the sentencing hearing. Appendix at 59. The amount of the repayment is also entered under “Restitution” on the Judgment form. Appendix at 16. Because this condition of supervised release was specified to be “restitution” and because it is § 3563(b) which permits the imposition of “restitution” as a condition of supervised release, we conclude from the use of this term that the order of restitution must follow the provisions of § 3563. Otherwise, the “catch-all” exception prong of § 3583(d) would swallow the rule. For this reason, we conclude that the order incorporated by reference § 3563(b)’s terminology “restitution to the victim ” (emphasis added). Thus, we again are faced with the requirement that restitution be made to a “victim.” We cannot see how the FBI can be a “victim” under § 3563(b) if it is not a “victim” under the" }, { "docid": "6627613", "title": "", "text": "18 U.S.C. I The sentencing judge stated, after discussing the victim-restitution cases: [T]he FBI, I find, is not a victim of defendant Cottmaris offense and the “buy money” is not recoverable under the VWPA. Therefore, I agree with defendant’s objection to the award of restitution to the FBI. Restitution should be made to the owners of the cable boxes.... I’m ordering that the boxes be returned to their rightful owners as restitution. Appendix at 46-47. The sentencing judge then reviewed the “buy-money” decision in United States v. Daddato, 996 F.2d 903 (7th Cir.1993) and concluded that authority for a repayment order was conferred by the supervised release statute provision: “any other condition [the court] considers to be appropriate.” 18 U.S.C. § 3583(d)(3). The sentencing judge — as the majority stresses-referred at times to the repayment as “restitution” and the repayment is so characterized on the judgment of sentence form. Nevertheless, the judge’s sentencing statement unmistakably shows the intent to follow Daddato and to exercise “any other condition” discretion, not to order restitution to the FBI as a victim. Appendix at 47-50, 59. The significance of the distinction is more than semantic. By incorporating by reference the conditions authorized in the probation statute, the supervised release statute also empowers the sentencing judge ‘restitution to the victim.” 18 U.S.C. § 3563(b)(3). Under the VWPA cases, that provision, by its own terminology, could not be utilized to order a repayment of “buy money.” Despite the finding of the sentencing judge that the FBI was not a “victim” and was not entitled to victim-related “restitution,” the majority conclusively infers that the condition was imposed under § 3563(b)(3) and was, accordingly, invalid. to order Moreover, the idea of restitution, which historically has involved redress to a victim, has been evolving to include victimless reparations. The sentencing judge's sporadic use of “restitution” in a non-victim-related sense to refer to the repayment of “buy money” has good precedent. In Daddato, now Chief Judge Posner’s decision characterizes the repayment of “buy money” as “in the nature of restitution,” observing that “[we] need not determine whether such an order" }, { "docid": "4325165", "title": "", "text": "114 L.Ed.2d 100 (1991). Thus, to determine the character of an appeal, we must look to the “substance and context” of the underlying proceeding. Betts v. United States, 10 F.3d 1278, 1283 (7th Cir.1993). From the substance and context of the proceeding in this case, it is clear that Mr. Lilly’s appeal is subject to Rule 4(b)’s 10-day filing requirement. Mr. Lilly’s petition for clarification asked the district court to clarify a condition of the supervised release it previously had imposed . upon him. Specifically, Mr. Lilly asked the court to clarify whether the amount ($28,395.20) previously paid by him prior to sentencing fulfilled his obligation to pay $25,000 in restitution to the Faith Baptist Church. In granting Mr. Lilly’s petition, the district court responded directly to Mr. Lilly’s inquiry, made clear that the $25,000 imposed at sentencing was intended to be an amount in addition to the funds that he had paid previously, and informed Mr. Lilly that he had not satisfied his restitution obligation. There can be no doubt that the district court had the authority to entertain such a motion for clarification and to issue an order responding to Mr. Lilly’s inquiry. When Mr. Lilly was sentenced in 1993, the criminal code authorized the district court to impose an obligation of restitution as a condition of Mr. Lilly’s supervised release. See 18 U.S.C. § 3583(d) (1993) (referencing 18 U.S.C. § 3563, which sets forth conditions for probation, and authorizing the district court to impose a number of conditions listed in § 3563, including restitution, as a condition of a defendant’s supervised release); see also U.S. Sentencing Guidelines Manual § 5El.l(a)(2) (1992) (requiring the sentencing court to include a restitution requirement as a condition of a defendant’s supervised release). Moreover, under § 3583, district courts retained the authority to terminate, modify or revoke a defendant’s term of supervised release. See 18 U.S.C. § 3583(e) (1993). Although Congress has amended various provisions of § 3583, including § 3583(e), since 1993, those changes do not have a substantive impact on our discussion here, and the district court’s authority to terminate," }, { "docid": "23051367", "title": "", "text": "centers around how to harmonize 18 U.S.C. §§ 3563(b)(2), 3583(d), and 3663, which provide when a court may order restitution, with this Circuit’s most extensive interpretation of any of those statutes in the tax context, United States v. Gottesman, 122 F.3d 150 (2d Cir.1997). We hold that a natural reading of the statutes permits the trial court’s order here, and that Gottesman does not require a different result. It is well-established that a federal court may not order restitution except when authorized by statute. See United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992). Section 3663(a) provides that a district court generally may order restitution as part of a sentence itself when the defendant is convicted of a specified collection of statutes; that collection, however, does not include either of the statutes Bok violated here. See 18 U.S.C. § 3663(a)(1)(A) (Supp. II 1996). In addition to § 3663, § 3583(d) governs orders of restitution within the context of supervised release, detailing the required and permissible conditions of restitution in that context. It provides that “[t]he court may order, as a further condition of supervised release, to the extent [certain factors not relevant here are met,] any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) ... and any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d) (1994). Among the discretionary conditions of probation referred to in § 3563(b) is the requirement that the defendant “make restitution to a victim of the offense ... (but not subject to the limitation of section 3663(a) ... ).” 18 U.S.C. § 3563(b)(2) (Supp. II 1996) (emphasis added). Thus a plain reading of §§ 3583(d) and 3563(b) permits a judge to award restitution as a condition of supervised release without regard to the limitations in § 3663(a). The Sentencing Guidelines of 1990, which were in effect at the time Bok committed his crimes, provide additional support for the conclusion we find to be suggested by the statutes. Section 5El.l(a) specifically authorized a trial court" }, { "docid": "12601987", "title": "", "text": "the offenses covered by the VWPA and the MVRA. The district court is therefore authorized by § 3563(b)(2) to order restitution as a condition of probation to the victim of any criminal offense, including those in Title 26, for which probation is properly imposed. A consistent line of decisions supports this interpretation of § 3563. In United States v. Nachtigal, 507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993) (per curiam), the Supreme Court recognized the authority of federal courts “to attach a host of discretionary conditions to [a] probationary term” pursuant to § 3563(b), id. at 2, 113 S.Ct. 1072, and, more specifically, to order restitution as a condition of probation for offenses set forth in the Code of Federal Regulations, id. at 5 n. *, 113 S.Ct. 1072 (“Under 18 U.S.C. § 3563(b), a court may require, among other things, that the defendant ... pay restitution [as a condition of probation]”). In addition, several of our sister circuits have recognized, directly or tangentially, the authority of courts to order restitution as a condition of probation for offenses under Title 26. See, e.g., United States v. May, 568 F.3d 597, 607 n. 6 (6th Cir.2009); United States v. Nolen, 523 F.3d 331, 332 (5th Cir.2008); United States v. Lewis, 235 F.3d 215, 219 (4th Cir.2000); United States v. Bok, 156 F.3d 157, 166-67 (2d Cir.1998). Although we have not directly held the same until today, we have recognized the authority of courts to order restitution as a condition of probation for offenses under Title 41 and, in the same opinion, affirmed an order imposing restitution as a condition of probation for an offense under Title 26. United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 923, 924 n. 7, 931 (9th Cir.2001). We have no doubt, therefore, of the authority of federal courts to order restitution as a condition of probation for offenses not set forth in the VWPA or the MVRA. b. The Supervised Release Statute Grants Federal Courts the Authority to Order Restitution as a Condition of Supervised Release for Any Criminal Offense Despite its" }, { "docid": "6627617", "title": "", "text": "that precede it. Daddato explains that the return of “buy money” is comparable to, albeit not the same as, traditional “restitution.” An order to repay the government’s “buy money” is similar in requiring the defendant to convey something of value to the community, rather than to his victims (if any there be) specifically. State v. Connelly, 143 Wis.2d 500, 421 N.W.2d 859 (App. 1988). * * * * * * On the one hand, it seems unrealistic to describe the defendant as having wrongfully taken money eagerly tendered to him so that he could incriminate himself. On the other hand, it was money that he obtained through criminal activity and therefore had no right to keep. No matter. The list in section 3563(b) is not limited to restitution, or even to conditions that resemble restitution (which this, at the very least, does); it is enough that the order to repay the buy money is of the same general kind as the items in the list, and it is. 996 F.2d at 905 (bold in original). The year after Daddato, a panel of the Sixth Circuit Court of Appeals granted § 2255 relief where a supervised release condition to repay “buy money” was imposed as to four drug charges, although three of the charges had been dismissed in exchange for the defendant’s guilty plea to the fourth. Gall v. United States, 21 F.3d 107 (6th Cir.1994). The decision, after confining “restitution” as a condition of supervised release to crimes “charged and convicted,” described the second part of its holding: “the government is not a victim to which a district court may order a defendant to pay restitution for the purpose of recovering drug ‘buy money’ and other costs of investigation voluntarily paid out.” 21 F.3d at 108 (bold in original). In much the same way as our majority, which cites Gall for this point, it ignores Daddato and equates repayment of “buy money” with traditional “restitution”; it then summarily conflates § 3563(b)(3) with the VWPA because of the incorporation by reference of § 3563(b)(3) — “restitution to the victim.” The concurrence" }, { "docid": "7451545", "title": "", "text": "in section 3563(b)(1) through (b)(10).” 18 U.S.C. § 3583(d). Discretionary conditions of probation include “restitution to a victim of the offense under section 3556.” 18 U.S.C. § 3563(b)(2). The cross-reference here is to the general restitution provision: “The court, in imposing sentence on a defendant who has been found guilty of an offense shall order restitution in accordance with section 3663A, and may order restitution in accordance with section 3663.” 18 U.S.C. § 3556. The restitution statute further provides that “[t]he procedures under section 3664 shall apply to all orders of restitution under this section.” Id. Accordingly, the district court’s discretionary authority to order restitution as a condition of supervised release for a crime not specifically covered by either § 3663 or § 3663A is subject to the same rules and procedures that govern all other restitution orders. Restitution orders are limited to: (1) losses caused by the specific conduct that is the basis of the offense of conviction; (2) losses caused by conduct committed during “an offense that involves as an element a scheme, conspiracy, or pattern”; and (3) restitution agreed to in a plea agreement. 18 U.S.C. §§ 3663 & 3663A; Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006); United States v. Randle, 324 F.3d 550, 556 (7th Cir.2003). These limitations are based on the language of the restitution statutes. Hughey, 495 U.S. at 416-20, 110 S.Ct. 1979; Randle, 324 F.3d at 556. Both §§ 3663 and 3663A refer to restitution to victims of “the offense,” and this language has been interpreted to mean the offense of conviction. Hughey, 495 U.S. at 416, 110 S.Ct. 1979; Randle, 324 F.3d at 556. Both statutes also contemplate restitution for losses suffered during the course of a scheme, pattern, or conspiracy, when those are elements of the crime. See 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2). Finally, both statutes allow for restitution as bargained for in plea agreements. 18 U.S.C. §§ 3663(a)(3), 3663A(a)(3). Relevant conduct is not within the scope of either statute. See, e.g., Belk," }, { "docid": "6627599", "title": "", "text": "to order a defendant as a condition of probation to “make restitution to a victim of the offense under sections 3663 and 3664....” The District Court employed the term “restitution” when imposing repayment at the sentencing hearing. Appendix at 59. The amount of the repayment is also entered under “Restitution” on the Judgment form. Appendix at 16. Because this condition of supervised release was specified to be “restitution” and because it is § 3563(b) which permits the imposition of “restitution” as a condition of supervised release, we conclude from the use of this term that the order of restitution must follow the provisions of § 3563. Otherwise, the “catch-all” exception prong of § 3583(d) would swallow the rule. For this reason, we conclude that the order incorporated by reference § 3563(b)’s terminology “restitution to the victim ” (emphasis added). Thus, we again are faced with the requirement that restitution be made to a “victim.” We cannot see how the FBI can be a “victim” under § 3563(b) if it is not a “victim” under the VWPA. We feel obliged to conclude that the statutory provisions are parallel in their definition of “victim.” See Gall v. United States, 21 F.3d 107, 111 (6th Cir.1994) (holding that “ § 3583(d) via its reference to ... § 3563(b)(3) requires restitution to conform with provisions of the VWPA”). On remand, it may be that other victims of Cottman’s offense can be ascertained. However, for the reasons stated above, we hold that the FBI was not a victim and, as a result, the conditions of Cottman’s supervised release cannot include a requirement that he pay restitution to the FBI. III. Conclusion In view of the aforesaid, Cottman’s judgment of sentence will be affirmed insofar as it imposed a term of imprisonment with an enhancement under § 2B1.1(b)(4)(B). We will, however, vacate the conditions of supervised release portion of the judgment of sentence, imposing the condition of payment of restitution to the FBI. We will remand this case to the district court for resentencing. . The Pre-Sentence Report (PSI) also discussed statements provided by an anonymous" } ]

[ { "docid": "3721800", "title": "", "text": "Supreme Court in fact drew some parallels between civil discovery matters and the FOIA in EPA v. Mink, relative to inter and intra agency communications. Mink, supra at 85, 93 S.Ct. 827. See also Sec. of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973). This Court will look to the FOIA for guidance in determining the sustainability of the appellants’ claims. No clear and concise standard has been developed under that Act, if one is in fact feasible, to determine whether an agency has adequately made a case for nondisclosure. No formula will likely be of value but the FOIA itself puts the burden upon the agency to justify its classification of the documents. 5 U.S.C. § 552(a)(4)(B). Further a Court generally may not deny disclosure of documents under that Act unless they are clearly covered by one of its exemptions. This Court believes that in the context of civil litigation the balancing test in Reynolds must be combined with the FOIA, thus creating a variable burden upon the government dependent upon the need shown by the plaintiff. In addition when, as in this case, the dispute involves more than one document or type of information, the District Court’s inquiry must look at each item or logically related group of items individually in order to assure full consideration of the government’s claims. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 347, 484 F.2d 820, 827 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The final issue which must be resolved before considering the specific discovery requests here before the Court is the standard of review to be applied to the District Court’s decision. The appellees urge the adoption of an “abuse of discretion” standard to review the District Court’s factual finding that the documents it examined contained no state secrets. The appellants assert any determination of that type involves mixed questions of law and fact. Of course, normally the District Court is allowed broad discretion in the resolution of discovery disputes, but the mixture in this action of the basic fairness issues usually involved in such" } ]

[ { "docid": "12265809", "title": "", "text": "Cir.1985) (personal medical history protected from random governmental intrusion). In United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980), the Third Circuit held that the National Institute for Occupational Safety and Health (“NIOSH”) could compel the production of employee medical records from a private corporation. The court noted that governmental intrusion into medical records is permitted only after a finding that the societal interest in disclosure outweighs the individual's privacy interest on the specific facts of the case. Id. at 578. The court stated that the factors to be considered include (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. Id. In finding that NIOSH could compel production of the documents, the Third Circuit affirmed the trial court’s finding that NIOSH’s security precautions sufficiently assured nondisclosure by the agency. Id. at 580. Westinghouse, however, addresses compelled disclosure of medical records to the government. This case is somewhat different than Westinghouse and its progeny because Jane Doe’s husband voluntarily gave the information to the police. See United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980). See also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3233, 97 L.Ed.2d 739 (1987); Trade Waste Management Ass’n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985). Third Circuit precedents are silent on the duty of the government to protect medical information once such confidential information is disclosed to the government. The United States Supreme Court has indicated that the government’s duty to avoid unwarranted disclosures arguably has its roots in the federal Constitution. In Whalen v. Roe, 429 U.S. 589, 606, 97 S.Ct. 869, 879, 51 L.Ed.2d 64 (1977), the United States Supreme Court held that a" }, { "docid": "17616788", "title": "", "text": "that there are an inordinately high number of OWCP employees making claims under the FECA. Such a statement, without more, is insufficient to create a strong public interest in these files. Having rejected plaintiffs’ suggestion that there is a strong public interest in disclosure of these files, the Court turns to assess the public interest in disclosure. Plaintiffs’ only asserted public interest purpose-exposing abuses in the administration of the FECA — depends for its fulfillment on. two of plaintiffs’ own assumptions. First, plaintiffs assume that many OWCPemployed claimants are receiving improper benefits under the FECA. Second, plaintiffs assume that by examining the requested files they will be able to discern which claimants are entitled to benefits and which are not. Because of the likelihood that no public interest will be served by disclosure of the requested files if either of these assumptions is invalid, and because of the absence of any concrete evidence of wrongdoing by the OWCP-employed claimants, the Court can only conclude that the public interest in disclosure is speculative. 4. Balancing the Interests. Having concluded that disclosure of the requested files would result in a serious invasion of privacy and that the public interest to be served by disclosure is speculative, the Court must now balance these interests. Given its previous conclusions, the Court holds that the invasion of privacy outweighs the speculative interest the public may have in disclosure and therefore that disclosure would constitute a clearly unwarranted invasion of personal privacy. B. The Privacy Act. The Privacy Act, 5 U.S.C. § 552a (1976), needs to be considered only briefly, for it has no effect on the present action. Sears, Roebuck & Co. v. General Services Administration, 180 U.S.App.D.C. 202, 207, 553 F.2d 1378, 1383, cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977). The Privacy Act prohibits the disclosure of any kind of retrievable information about an individual in the government’s files. 5 U.S.C. § 552a(a)(5) (1976). It does, however, provide that an agency may disclose such information without obtaining the individual’s consent if disclosure would be required under the FOIA. Id." }, { "docid": "1214949", "title": "", "text": "the Ordinance specifies that the Code Enforcement Office will “submit identity data required by the federal government to verify immigration status,” but that the Office will “forward identity data provided by the owner to the federal government.” Id. at § 5.B.3. Courts have recognized two areas of privacy rights: “ ‘one is in the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.’ ” United States of America v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.1980). This case falls into the first of those categories. “There is no absolute protection against disclosure” of such confidential information. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir.1987). When a court evaluates “right to privacy claims, we ... balance a possible and responsible government interest in disclosure against the individual’s privacy interests.” Sterling v. Borough of Minersville, 232 F.3d 190, 195 (3d Cir.2000). Courts have concluded that “in performing the necessary balancing inquiry ... ‘the more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny.’ ” Id. (quoting Fraternal Order of Police, 812 F.2d at 118). Further, in considering whether private information should be disclosed, a court weighs seven factors: “(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable interest favoring access.” Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133, 1140 (3d Cir.1995) (citing United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir.1980)). For reasons that will become apparent, we will address only the question of whether the ordinances implicate private information. The Records Requested Hazleton’s ordinances do not explain with precision which documents are" }, { "docid": "17616789", "title": "", "text": "Interests. Having concluded that disclosure of the requested files would result in a serious invasion of privacy and that the public interest to be served by disclosure is speculative, the Court must now balance these interests. Given its previous conclusions, the Court holds that the invasion of privacy outweighs the speculative interest the public may have in disclosure and therefore that disclosure would constitute a clearly unwarranted invasion of personal privacy. B. The Privacy Act. The Privacy Act, 5 U.S.C. § 552a (1976), needs to be considered only briefly, for it has no effect on the present action. Sears, Roebuck & Co. v. General Services Administration, 180 U.S.App.D.C. 202, 207, 553 F.2d 1378, 1383, cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977). The Privacy Act prohibits the disclosure of any kind of retrievable information about an individual in the government’s files. 5 U.S.C. § 552a(a)(5) (1976). It does, however, provide that an agency may disclose such information without obtaining the individual’s consent if disclosure would be required under the FOIA. Id. § 552a(b)(2). The net effect of these provisions is to permit disclosure where the FOIA requires it, but to prohibit disclosure where the FOIA allows the agency to refuse to disclose. Thus, as applied to the present case, the Privacy Act prohibits defendants from disclosing any workers’ compensation file in the absence of an individual’s consent. III. CONCLUSION. For the reasons set forth above, the Court concludes that plaintiffs’ motion for summary judgment must be denied and defendants’ motion for summary judgment must be granted. . At oral argument on the parties’ cross-motions for summary judgment, both parties agreed that there is no genuine dispute as to the material facts in this action. . The Court does not believe that in camera inspection of the withheld files is necessary, because defendants have met the burden of showing that the files are covered by exemption 6. EPA v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); see note 5 infra and accompanying text. As required by Vaughn v. Rosen, 157 U.S.App.D.C. 340," }, { "docid": "5325586", "title": "", "text": "balancing the interests of the individual and society, and determining that the societal interest in disclosure outweighs the individual’s privacy interest on the specific facts of the case. Westinghouse, 638 F.2d at 578. See also Fraternal Order of Police, Lodge No. 5 v. Philadelphia, 812 F.2d 105, 110-11 (3d Cir.1987). In describing the balancing test, the Westinghouse court stated that the factors to be considered in deciding whether an intrusion into an individual’s privacy is justified include: (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generate; (5) the adequacy of the safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Westinghouse, 638 F.2d at 578. In the instant case, Ms. Faison has a privacy right in the nondisclosure of her medical and mental health information. Indeed, the type of medical and mental health information contained in the presentence report — information concerning Ms. Faison’s mental health and HIV status — is deserving of a high degree of protection. In O’Donnell v. United States, 891 F.2d 1079, 1086 (3d Cir.1989), the Third Circuit held that given the sensitive nature of psychiatric information “great care must be taken to maintain the confidentiality of psychiatric records.” See also Ms. B. v. Montgomery County Emergency Serv., Inc., 799 F.Supp. 534, 537 (E.D.Pa.1991); In re “B.”, 482 Pa. 471, 485, 394 A.2d 419, 426 (1978). Similarly, in Doe v. Barrington, 729 F.Supp. 376, 384 (D.N.J.1990), the court held that “the privacy interest in one’s exposure to the AIDS virus is even greater than one’s privacy interest in ordinary medical records because of the stigma that attaches with the disease.” But see Plowman, 698 F.Supp. at 632 (holding that the privacy interest in the nondisclosure of one’s HIV status is no greater than the privacy interest in the nondisclosure of other medical information). Notwithstanding" }, { "docid": "12065330", "title": "", "text": "Sears, Roebuck & Co. v. GSA, 553 F.2d 1378 (D.C.Cir.), cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977). From the record before us, it is quite clear that a substantial, “genuine” dispute remains over the critical factual issue in this case — whether public disclosure would cause individuals to so narrowly construe the requests for information in Form HHS-474 that the government’s information-gathering ability would be seriously impaired. While the government has offered several affidavits tending to support the notion that this impairment would result, these statements are vigorously contested by the Post’s (similarly terse) affidavits in response. For example: “Public disclosure, if anything, would have the effect of ensuring a more complete response because people would want to avoid the risks and embarrassment of being thought not to have fully disclosed.” J.A. at 184 (Affidavit of Nicholas A. Ash-ford, Director of the Center for Policy Alternatives, Associate Professor of Technology and Policy in the School of Engineering at Massachusetts Institute of Technology, and former consultant on several NCI peer review panels). In a similar vein, Dr. J.R. Heller, Jr., a former Director and subsequently a Special Assistant to the Director of the NCI, stated that “the fact that NCI advisors must complete Form 474 to be eligible for service, if combined with knowledge on their part that the forms will be publicly available, will have a beneficial effect on ensuring that related financial interests are fully disclosed.” J.A. at 187. While the district court may of course ultimately determine that the Post’s authorities are less believable than the NCI’s, it is impermissible to conclude at this stage that no reasonable factfinder could be persuaded by the Post’s evidence. As this court explained in Sears, Roebuck & Co., Where there is a conflict in the affidavits as to what adverse consequences will flow from the revelation of the facts contained in the documents sought to be disclosed, then it appears that there is indeed a conflict regarding very material facts which calls for some type of adversary procedure. 553 F.2d at 1382. In this case, however," }, { "docid": "6467869", "title": "", "text": "and conclusions reached by the compliance officer as the result of his investigation represent precisely this kind of predecisional communication, for the compliance officer’s recommendations and opinions are used by the OSHA in deciding what agency action should follow. See Petters Affidavit at 6-7. This conclusion is not weakened by the fact that OSHA also uses the compliance officer’s conclusions in formulating general agency policy. See Sears, supra, 421 U.S. at 151 n.18, 95 S.Ct. at 1517 n.18. The attorney-client privilege is also properly triggered in this case to prevent disclosure of a communication between the compliance officer’s supervisor and an attorney with the Solicitor of Labor. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862-66 (D.C.Cir.1980). Thus, this information falls squarely within the protection of exemption 5. OSHA next argues that the home addresses of several witnesses and employees can be withheld under exemption 7(C), 5 U.S.C. § 552(b)(7)(C), which exempts “investigatory records compiled for law enforcement purposes, but only to the extent that production of such records would ... (C) constitute an unwarranted invasion of personal privacy .... ” In deciding whether a particular disclosure represents an “unwarranted invasion of personal privacy,” this Court must balance “the individual’s privacy interest in non-disclosure against the public interest in disclosure.” Department of the Air Force v. Rose, 425 U.S. 352, 370-73, 96 S.Ct. 1592, 1603-05, 48 L.Ed.2d 11 (1976). The privacy interest of the witnesses and employees is substantial, as disclosure of their home addresses would subject them to precisely the harm that exemption 7(C) was intended to prevent. See McCorstin v. Department of Labor, 630 F.2d 242 (5th Cir. 1981). The factors weighing in favor of disclosure are slight. “[T]he disclosure provisions of FOIA are not a substitute for discovery, and a party’s asserted need for documents in connection with litigation will not affect, one way or the other, a determination of whether disclosure is warranted under FOIA.” Columbia Packing Co. v. United States Department of Agriculture, 563 F.2d 495 (1st Cir. 1977); see Sears, supra, 421 U.S. at 143 n.10, 95 S.Ct. at 1513" }, { "docid": "5325585", "title": "", "text": "of materials entitled to privacy protection. Information about one’s body and state of health is a matter which the individual is ordinarily entitled to retain within the ‘private enclave where he may lead a private life’.” Id. (quoting United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir.1956) (Frank, J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957)) (citations omitted); see also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.1987) (“medical records are clearly within this constitutionally protected sphere”). The Third Circuit recognized, however, that the privacy right in nondisclosure of confidential medical information is far from absolute, and “even material which is subject to protection must be produced or disclosed upon a showing of proper governmental interest.” Westinghouse, 638 F.2d at 577; see also Whalen, 429 U.S. at 699, 97 S.Ct. at 876; Plowman v. U.S. Dep’t of Army, 698 F.Supp. 627, 634 (E.D.Va.1988) (privacy right of this nature not absolute or unqualified). The Westinghouse court held that governmental intrusion into medical records is permitted only after balancing the interests of the individual and society, and determining that the societal interest in disclosure outweighs the individual’s privacy interest on the specific facts of the case. Westinghouse, 638 F.2d at 578. See also Fraternal Order of Police, Lodge No. 5 v. Philadelphia, 812 F.2d 105, 110-11 (3d Cir.1987). In describing the balancing test, the Westinghouse court stated that the factors to be considered in deciding whether an intrusion into an individual’s privacy is justified include: (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generate; (5) the adequacy of the safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Westinghouse, 638 F.2d at 578. In the instant case, Ms. Faison has a privacy right in the nondisclosure of her medical and mental" }, { "docid": "23673917", "title": "", "text": "through the wet paper; an alleged statement from an unknown individual captured on video stating that Doe had a “big rip in her ass” (it is unclear from the record whether this comment referred to Doe’s body or the paper covering her body); and a statement from an unknown individual that Doe’s tan lines were visible. Doe, as the nonmovant, is entitled to have all inferences viewed in the light most favorable to her. See, e.g., Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. Under the circumstances before us, the issues of whether Doe’s breasts or buttocks were exposed would affect the outcome of the suit and thereby are material. The analysis is not complete, however, because a person’s right to avoid disclosure of personal matters is not absolute. See C.N., 430 F.3d at 179; Fraternal Order of Police, 812 F.2d at 110. “Disclosure may be required if the government interest in disclosure outweighs the individual’s privacy interest.” Fraternal Order of Police, 812 F.2d at 110 (citing Trade Waste Mgmt. Ass’n v. Hughey, 780 F.2d 221, 234 (3d Cir.1985); Westinghouse Electric, 638 F.2d at 577). When making such a determination, we apply a “flexible balancing test” and consider the following factors: the type of record requested, [2] the information it does or might contain, [3] the potential for harm in any subsequent nonconsensual disclosure, [4] the injury from disclosure to the relationship in which the record was generated, [5] the adequacy of safeguards to prevent unauthorized disclosure, [6] the degree of need for access, and [7] whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. C.N., 430 F.3d at 179-180 (quoting Westinghouse Electric, 638 F.2d at 578); see also Fraternal Order of Police, 812 F.2d at 110-11. On the record before us, the aforementioned factors overwhelmingly weigh in Doe’s favor. The type of records at issue include photographs of Doe while she is partially dressed and an edited video of Doe that may include images of, among other things, Doe’s exposed breasts and/or buttocks. The potential harm of" }, { "docid": "16631761", "title": "", "text": "of litigation and that the requested records therefore must be released. These records, however, were generated by the predeeisional deliberative processes of the ERP in determining whether or not to retain or terminate plaintiff and therefore are protected under FOIA Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975); Coastal States Gas Carp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980); Jordan v. United States Department of Justice, 591 F.2d at 773; Suppl. Strickland Decl. ¶¶ 29-30. In addition, the consultation with the Attorney Advisor from the General Counsel’s Office throughout the process at the very least demonstrates that the ERP was concerned about potential litigation. Exemption 5 was properly invoked. The CIA also redacted the names of third party non-Agency personnel pursuant to FOIA Exemption 6, which protects from disclosure personnel, medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(6); see Strickland Decl. ¶ 35. The disclosure of such information is subject to a balancing between the individual’s interest in privacy and the public’s right to know how the government functions. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749,109 S.Ct. 1468,103 L.Ed.2d 774 (1989). Since the names of non-Agency personnel mentioned in plaintiffs file do not shed light on the workings of the CIA, while those individuals have an interest in protecting the fact that their names appear in such files, on balance the redactions were appropriate and disclosure would constitute an unwarranted invasion of personal privacy. Plaintiff also complains with respect to approximately half the released documents that the interviewees or information sources for those documents did not expressly request confidentiality and therefore that the CIA is not entitled to withhold their names under Exemption 7(D) of the FOIA. See Pl.’s Response to and Analysis of Privacy Act Records Re-Processed By the Defendants (Table) (contesting documents in Defs.’ Ex 1, Tab Nos. 107, 110, 113, 128-133, 136-142, 144, 145, 147-149, 152, 153, 167-172, 174-191," }, { "docid": "18178106", "title": "", "text": "Sess. 164 (Joint Committee Print 1975) [hereinafter “Source Book”]. It is thus clear that computer-stored records, whether stored in the central processing unit, on magnetic tape or in some other form, are still “records” for purposes of the FOIA. See Long v. IRS, 596 F.2d 362, 365 (9th Cir. 1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980). Although accessing information from computers may involve a somewhat different process than locating and retrieving manually-stored records, these differences may not be used to circumvent the full disclosure policies of the FOIA. The type of storage system in which the agency has chosen to maintain its records cannot diminish the duties imposed by the FOIA. It is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S.Ct. 1504, 1521-22, 44 L.Ed.2d 29 (1975). A requester is entitled only to records that an agency has in fact chosen to create and retain. Thus, although an agency is entitled to possess a record, it need not obtain or regain possession of a record in order to satisfy a FOIA request. Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980). The argument that a document with some information deleted is a “new document,” and therefore not subject to disclosure, has been flatly rejected. Long, 596 F.2d at 366. This is true even if all but one or two items of information have been deleted. Disabled Officers’ Association v. Rumsfeld, 428 F.Supp. 454, 457 (D.D.C. 1977). Agencies are not, however, required to commit to paper information that does not exist in some form as an agency “record.” Thus, they need not write an opinion or add explanatory material to a document. Sears, Roebuck & Co., 421 U.S. at 161-62, 95 S.Ct. at 1521-22. The case law in this area," }, { "docid": "18512002", "title": "", "text": "privacy. Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 260 (D.C.Cir.1982). It is the requester’s obligation to demonstrate the existence of a significant public interest in disclosure. See Coleman v. Lappin, 680 F.Supp.2d 192, 196 (D.D.C.2010). The Army denied plaintiffs FOIA request in part “in accordance with Title 5, United States Code, Section 552(b)(6), and paragraph 3-200, Exemption 6, Army Regulation 25-55, the Department of the Army Freedom of Information Act Program.” Defs.’ Renewed Mot., Jones Decl. ¶ 5. Redacted were the names of third parties appearing in the three documents referred by the BATFE to the Army, see id., Jones Deck, Attach., in order “to protect [their] personal privacy,” id., Jones Deck ¶4. Only the names were redacted; the remainder of the documents was released. Id., Jones Deck ¶ 6. Wholly absent from plaintiffs opposition is an assertion of any public interest which outweighs the personal privacy interests of these third parties. See generally Pl.’s Opp’n. The Court concludes that the Army has complied fully with its obligations under the FOIA. Its decision to redact the names of third parties was appropriate, and all segregable information has been released to plaintiff. 3. Exemption 7(C) Exemption 7(C) protects from disclosure information in law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular mate rial, the Court must balance the interest in privacy of individuals mentioned in the records against the public interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.Cir.2007); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C.Cir.1992). The privacy interest at stake belongs to the individual, not the government agency, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Nat’l Ass’n of Retired Fed. Employees v. Homer, 879 F.2d 873, 875 (D.C.Cir.1989) (noting individual’s significant privacy interest “in avoiding the unlimited disclosure of" }, { "docid": "10768465", "title": "", "text": "the interest in independence in making certain kinds of.important decisions. Whalen v. Roe, supra, 429 U.S. at 598-600, 97 S.Ct. at 875-76; Barry v. City of New York, 712 F.2d 1554, 1558 (2nd Cir.1983). These two interests have been characterized by the Fifth Circuit as interests in “confidentiality” and in “autonomy” respectively. Plante v. Gonzalez, 575 F.2d 1119, 1128 (5th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1980). The interest in autonomy has encompassed matters relating to marriage, procreation, contraception, family relationships and child rearing and education. United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3rd Cir.1980), quoting Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). This instant action implicates the interest in confidentiality. The right to privacy has been held to extend to the “individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, supra, 429 U.S. at 599-600, 606, 97 S.Ct. at 876, 879. 112] The right to privacy is not absolute. The state has the power to compel disclosure of otherwise private information when its interest in the information outweighs the individual’s interest in non-disclosure. Plante, supra, 575 F.2d at 1134. The Third Circuit has articulated several factors which must be considered in evaluating the competing interests: the type of record requested, the information it does or might contain, the potential for harm in any subsequent non-consensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access. Westinghouse, supra, 638 F.2d at 578. First, there is a substantial governmental interest in the strict regulation of horse racing so as to preserve and promote its safety and integrity. The legislature has substantial power to regulate non-essential, dangerous, and sensitive industries to protect the public safety and welfare. Delguidice, supra (horse racing). See also Martin, supra (casino gambling); Niglio, supra (horse racing). The state has a legitimate" }, { "docid": "22813001", "title": "", "text": "the light of public scrutiny,’ ” that is, “to let the citizenry know what their government is up to.” Landano, 956 F.2d at 428 (quoting Reporters Comm., 489 U.S. at 772-73, 109 S.Ct. at 1481). Because disclosure of an individual’s medical files would not advance the FOIA’s goal of permitting public scrutiny of agency action, the Government reasons, McDonnell is not entitled to disclosure. [28] Although Reporters Committee dealt with Exemption 7(C)’s exclusion of records or information compiled for law enforcement purposes to the extent that their production could reasonably be expected to constitute an unwarranted invasion of personal privacy, its pronouncements regarding the purpose of the FOIA are equally applicable here, particularly given the similar balancing of interests analysis applicable to both Exemption 6 and Exemption 7(C). Specifically, Reporters Committee recognized “that disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind.” 489 U.S. at 765, 109 S.Ct. at 1478. When a person requesting information under the FOIA seeks records of an inherently private nature, the propriety of disclosure under Exemption 6 depends on whether their revelation would be “a clearly unwarranted invasion of personal privacy.” 5 U.S.C.A. § 552(b)(6). Likewise, ‘Vhether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.” Reporters Comm., 489.U.S. at 771, 109 S.Ct. at 1480. Congress “ ‘clearly intended’ the FOIA ‘to give any member of the public as much right to disclosure as one with a special interest [in a particular document]’ ”. Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975)). Accordingly, the reason for which McDonnell seeks disclosure of the medical records at issue — access to information for the purposes of writing a book — is irrelevant to whetherdisclosure is proper. Instead, whether disclosure of a private document is warranted under Exemption 6 must turn, like disclosure under Exemption 7(C), on the nature of the requested document and its relationship to “the basic purpose of the Freedom of Information" }, { "docid": "2062398", "title": "", "text": "the private information is already disclosed to other individuals or institutions; 3) the similarity of the disclosure in question to disclosures that have already taken place; 4) the potential deterrent effect on the exercise of other constitutional liberties; and 5) the state’s interest in the information. 429 U.S. at 601-04, 97 S.Ct. 869. In Nixon, the factors considered were: 1) the extent of the intrusion into the individual’s privacy; 2) the individual’s status as a public figure; 3) the expectation of privacy in the materials in question; 4) the importance of the public interest; 5) the level of difficulty involved in segregating private from non-private materials; and 6) the measures taken to keep private materials from being publicly disseminated or revealed. 433 U.S. at 465, 97 S.Ct. 2777. A number of our sister circuits have adopted a variation of the balancing test articulated by the Third Circuit that includes: 1) \"the type of record requested”; 2) “the information it does or might contain”; 3) \"the potential for harm in any subsequent noncon-sensual disclosure”; 4) \"the injury from disclosure to the relationship in which the record was generated”; 5) \"the adequacy of safeguards to prevent unauthorized disclosure”; 6) \"the degree of need for access”; 7) \"whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.\" United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980); see In re Crawford, 194 F.3d 954, 959 (9th Cir.1999). . The present record does not reveal whether the Authorization extends to medical records or communications as Denius alleges. We leave this factual determination to be resolved by the district court. . The District of Columbia Circuit has recently expressed \"grave doubts” as to the existence of a federal right of confidentiality. See American Fed’n of Gov’t Employees v. Department of Hous. & Urban Dev., 118 F.3d 786, 791 (D.C.Cir.1997). However, that circuit recognized that it did not \"write on a blank slate” and that the circuit's earlier decisions indicated the existence of such a right. Id. at 791-92. Similarly, the First Circuit has expressed concern" }, { "docid": "12265808", "title": "", "text": "plaintiffs from governmental disclosure of their husband’s and father’s infection with the AIDS virus. The United States Supreme Court has recognized that the fourteenth amendment protects two types of privacy interests. “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (footnotes omitted). Disclosure of a family member’s medical condition, especially exposure to or infection with the AIDS virus, is a disclosure of a “personal matter.” The Third Circuit recognizes a privacy right in medical records and medical information. United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980) (employee medical records clearly within zone of privacy protection). See also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3233, 97 L.Ed.2d 739 (1987) (medical records clearly within constitutional sphere of right of privacy); Trade Waste Management Ass’n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985) (personal medical history protected from random governmental intrusion). In United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980), the Third Circuit held that the National Institute for Occupational Safety and Health (“NIOSH”) could compel the production of employee medical records from a private corporation. The court noted that governmental intrusion into medical records is permitted only after a finding that the societal interest in disclosure outweighs the individual's privacy interest on the specific facts of the case. Id. at 578. The court stated that the factors to be considered include (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. Id. In finding that NIOSH could compel production of" }, { "docid": "2452316", "title": "", "text": "638 F.2d at 577. In addressing claimed violations of confidentiality interests, the Supreme Court has applied a flexible balancing approach. For example, in Nixon v. Administrator of General Services, 433 U.S. 425, 458, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977), the Court stated: “But the merit of appellant’s claim of invasion of his privacy ... must be considered in light of the specific provisions of the Act, and any intrusion must be weighed against the public interest in subjecting the Presidential materials of appellant’s administration to archival screening.” Most circuits appear to apply an “intermediate standard of review” for the majority of confidentiality violations, see Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 548, 78 L.Ed.2d 723 (1983), with a compelling interest analysis reserved for “severe intrusions” on confidentiality. See Thorne v. City of El Segundo, 726 F.2d 459, 469 (9th Cir.1983), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984); see also Whalen, 429 U.S. at 606-07, 97 S.Ct. at 879-80, (Brennan, J., concurring) (“a statute that did effect such a [serious] deprivation [of privacy] would only be consistent with the Constitution if it were necessary to promote a compelling state interest”). But see Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986) (compelling interest analysis for all privacy violations). In Westinghouse, this court set out the general balancing test as follows: [W]e must engage in the delicate task of weighing competing interests. The factors which should be considered in deciding whether an intrusion into an individual’s privacy is justified are the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. 638 F.2d at 578. The district court suggested that a test more stringent than this balancing" }, { "docid": "2452317", "title": "", "text": "at 879-80, (Brennan, J., concurring) (“a statute that did effect such a [serious] deprivation [of privacy] would only be consistent with the Constitution if it were necessary to promote a compelling state interest”). But see Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986) (compelling interest analysis for all privacy violations). In Westinghouse, this court set out the general balancing test as follows: [W]e must engage in the delicate task of weighing competing interests. The factors which should be considered in deciding whether an intrusion into an individual’s privacy is justified are the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. 638 F.2d at 578. The district court suggested that a test more stringent than this balancing standard should be applied. It read Denoncourt v. Commonwealth of Pennsylvania State Ethics Comm’n, 504 Pa. 191, 470 A.2d 945 (1983), as requiring a least restrictive means analysis for privacy violations under the Pennsylvania Constitution. Although it is not clear which test the district court actually applied, it would have been error not to apply the Westinghouse standard. In Denoncourt, the Pennsylvania Supreme Court invalidated the provisions of Pennsylvania’s Ethics Act which required all public officials to provide financial disclosure with respect to their family members. A majority of the court held that these provisions were violative of due process. A plurality relied as well on the right to privacy. In the privacy portion of the opinion, the plurality looked to the significance of the government interest and whether “there is [an] alternate reasonable method of lesser intrusiveness to accomplish the governmental purpose.” Id. at 949. The plurality concluded that as applied to family members the Act was both ineffective and overbroad. Unlike the district court, we do not read Denoncourt as indicating that the" }, { "docid": "20819204", "title": "", "text": "upheld the responses under FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), which exempts from disclosure law enforcement records and information whose release could constitute an unwarranted invasion of personal privacy. PETA v. NIH, 853 F.Supp.2d 146, 154-59 (D.D.C.2012). The court determined that acknowledging the existence of documents responding to PETA’s requests would confirm that NIH had investigated the three named researchers. Id. at 155. Such a confirmation, the court reasoned, would “go[ ] to the heart of the privacy interest that Exemption 7(C) was designed to protect.” Id. Concluding that any public interest in disclosure failed to outweigh the privacy interests at stake, the district court upheld NIH’s Glomar responses. Id. at 159. PETA now appeals, challenging the validity of NIH’s Glomar responses to the second and third requests. II. The Freedom of Information Act “implement[s] a general philosophy of full agency disclosure.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks omitted). The statute “requires every federal agency, upon request, to make ‘promptly available to any person’ any ‘records’ so long as the request ‘reasonably describes such records.’ ” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003) (quoting 5 U.S.C. § 552(a)(3)). Agencies have “a duty to construe a FOIA request liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). An agency can withhold or redact documents only if the information falls within one of nine statutory exemptions. See 5 U.S.C. § 552(b)(1)-(9). The agency bears the burden of establishing that an exemption applies. Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468. An agency ordinarily must search for any documents responsive to the request, and must “disclose all reasonably segregable, nonexempt portions of the requested reeord(s).” Assassination Archives, 334 F.3d at 58 (citing 5 U.S.C. § 552(b)). In certain cases, merely acknowledging the existence of responsive records would itself “cause harm cognizable under [a] FOIA exception.” Wolf v. CIA 473 F.3d 370, 374 (D.C.Cir.2007) (quoting Gar-dels v. CIA 689 F.2d 1100, 1103 (D.C.Cir.1982)) (internal" }, { "docid": "14009726", "title": "", "text": "where a determination to disclose is inappropriate for reasons discussed in paragraph (a) of this section. In cases where another agency is concerned with information protected by exemption (8) in 5 U.S.C. 552(b) which is sought from records of the Department, the provisions of § 70.31 are also applicable. . See note 39 on page 1182. 39. Id. at 70.31 provides: If the release of a record in custody of the Department of Labor would be of concern not only to the Department but also to another Federal agency, the record will be made available by the Department only if its interest in the record is the primary interest and only after coordination with the other interested agency. If the interest of the Department in the record is not primary, the request will be transferred promptly to the agency having the primary interest, and the applicant will be so notified. The release of information received from another agency and the release to another agency of information collected from persons outside the Government shall be subject to the conditions and restrictions imposed by 44 U.S.C. 3508. . E. g., Planning Research Corp. v. F.P.C., 555 F.2d 970 (D.C.Cir.1977); Westinghouse Elec. Corp. v. Schlesinger, supra, 542 F.2d at 1209-10; Sears, Roebuck & Co. v. General Services Administration, 553 F.2d 1378, at 1380 n.6 (D.C.Cir. 1977); see Bachowski v. Brennan, 502 F.2d 79, 82 (3d Cir. 1974), rev’d on other grounds, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); cf. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). . The district court described the manning tables as lists of Chrysler’s internally used job titles and the number of people who perform each job. . In reaching this conclusion the court relied on the testimony of Chrysler’s witnesses, rather than on the rather spare administrative record. . See generally Clement, The Rights of Submitters to Prevent Agency Disclosure of Confidential Business Information: The Reverse Freedom of Information Act Lawsuit, 55 Texas L.R. 587 (1977); Note, Reverse-Freedom of Information Act Suits: Confidential Information in Search of Protection, 70" } ]

[ { "docid": "22174638", "title": "", "text": "has yet demonstrated good cause to overcome the protection as to any of the other questionnaires or interview memoranda. B Because we cannot affirm the district court’s entire order solely on the basis of the work-product doctrine, we are forced to confront Sun’s alternative ground for quashing the subpoena. Sun asserts that the attorney-client privilege protects any questionnaire or interview memorandum derived from one of its employees. If Sun is correct, this privilege would prevent the government from obtaining the deceased employee’s materials, which we have held to be outside work-product protection. Additionally, the privilege would bar discovery of any other employee-generated materials which the grand jury might need in the future. Perhaps the most commonly cited formulation of the attorney-client privilege is that offered by Judge Wyzanski in United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950): The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. The government advances several reasons why the attorney-client privilege should’not apply to the questionnaires and interview memoranda. Most significantly, it argues that the individual employees who communicated with Pepper did not hold positions in the corporation that allowed them to speak for the “client.” This argument forces us to confront an issue that has troubled courts for a number of years: the extent to which the attorney-client privilege protects communications to outside corporate counsel by employees at various levels of the corporate" } ]

[ { "docid": "793980", "title": "", "text": "of Quality, and that the searches were initiated by a request received by Quality from defendant Nancy Bruce to ship Bruce’s clothing and personal effects stored in the two storage areas to her. This request implicitly authorized a search of the areas in which clothing and personal effects would be found, since these items were mixed among various other items also stored at those places. The court finds that (1) Quality had the responsibility of managing and maintaining the properties of defendant Felton at which defendant Bruce’s effects were stored (Tr. I, p. 325), (2) Mr. Fleming, broker/president of Quality, was contacted by Agent Steven Todoric, II, of the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigations and informed that defendant Felton was being investigated (Tr. I, p. 333), (3) Todoric did not suggest that Fleming search the properties (Tr. I, p. 334), (4) Mr. Fleming was not pressured into consenting to the presence of the Utah authorities (Tr. I, p. 353-354), (5) Mr. Fleming, in order to protect the interests of Quality, requested the presence of the authorities, and had his agent, Mr. Woods, conduct the search for defendant Bruce’s belongings (Tr. I, p. 356), (6) the Utah authorities did not instruct Mr. Woods as to how to conduct the search (Tr. II, p. 45), and (7) Mr. Woods searched the contents of the storage areas and it was he, acting in a manner consistent with his understanding of his employer’s instructions, who offered items other than clothing for the perusal of the officers. They did not request to see or inspect any specific item. (Tr. II, pp. 5-7, pp. 24-25). Thus, the officers’ role in the search was passive, United States v. Sherwin, 539 F.2d 1 (9th Cir.1976); see also, Jacobsen, supra. Even if these were “Fourth Amendment” searches, however, we find that the officers were present at the search areas with the consent of Quality and that Quality had the authority to give consent. This authority had two independent bases. First, Quality was hired by Felton to manage and maintain the properties (Tr. I, p. 325);" }, { "docid": "794016", "title": "", "text": "of Particulars: Thurman, Hathome Defendants Thurman and Hathorne have filed motions for bills of particulars. Defendant Thurman’s request in paragraph 1 seeking names of all co-conspirators is granted to the extent that Felton’s similar request was granted at the suppression hearings. The requests of paragraphs 2, 3, 4, 5 and 7 will be denied for the reasons and to the extent that Felton’s similar requests were denied. Beyond that they appear to be moot, since considerable information was disclosed at the hearings. The request of Paragraph 6 seeking when, where and in what matter he is alleged to have become a member of the conspiracy will be denied. United States v. Bozza, 234 F.Supp. 15 (E.D.N.Y.1964). Hathorne’s general request for a full bill of particulars will be granted to the extent that Felton’s requests were granted at the hearings and denied in all other respects. An appropriate order will follow. . Robert Wilson died on May 26, 1981. . After an intensive hearing was held by the court, it made findings of fact in support of its conclusion that an enlargement of time for pretrial preparation was necessary in the interests of justice, which was concurred in by all counsel, and then entered an order under 18 U.S.C. § 3161(h)(8)(A) enlarging the times for filing motions as indicated in the text above, which also was concurred in by all counsel. See transcript of hearing of July 13, 1979, pp. 7-23, Clerk’s docket No. 19 at Cr. No. 79-121. . See hearing memo of January 16, 1981, hearing, Clerk’s docket No. 91 at Cr. No. 79-121. . See order of January 20, 1981, Clerk’s docket No. 92 at Cr. No. 79-121. . References to hearing of July 14-15, 1983, are indicated by Tr. I and to the hearing of July 28, 1983, as Tr. II. . 18 Pa.C.S.A. § 5703 provides in part: Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he: (2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral" }, { "docid": "793985", "title": "", "text": "not Schrager. (Tr. I, pp. 187-91, p. 214). Thus, on this record, no attorney/client relationship was sought to be established by Felton with Schrager, and no attorney/client privilege existed in the files Felton turned over to Boring. The court further finds that the government did not engage in bribery or any misconduct in the acquisition of those files, although Boring was given a promise of help with his drug problem. (Tr. I, pp. 266-9). Moreover, the government in obtaining the files had no reason to believe that they were part of any attorney/client dealings. (Tr. II, pp. 131, 136-7), since Boring told the government agents that he was doing work for Felton and offered the files as related to that work. (Tr. II, p. 137). Photographic Spread The defendant Felton has moved for an order compelling the government to reveal the circumstances surrounding the display of photographs of defendant Felton by government agents to potential witnesses. The defendant contends that the use of those photographs was prejudicial and that any in-court identification by a witness who has been exposed to the photographic spread should be held inadmissible. Testimony at the hearing, however, revealed that the photographs only were shown in order to determine if any of the subjects depicted thereon were known by the witnesses, and not to elicit the identification of any defendant. We are satisfied from a consideration of all the circumstances surrounding the use of the photographs that no prejudice to the defendant has occurred. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Levi, 405 F.2d 380 (4th Cir.1968). The motion to suppress, therefore, will be denied at this time with leave to the defendant to renew it at the trial if the record at that time indicates that he has been prejudiced unfairly by the pretrial use of the photographic spread. II Defendant Hathorne Hathorne has filed a number of motions. We will consider his motion to dismiss on grounds of double jeopardy and certain of his miscellaneous motions here, while his more general discovery and severance motions" }, { "docid": "21409983", "title": "", "text": "of death to more than one person, our cases reveal that testimony about the nature and extent of gunshot wounds are relevant for this aggravating circumstance. Williams, 188 P.3d at 224. In connection with his Strickland claim, Williams argues that certain unspecified details of the doctors’ testimony were “unfairly prejudicial and were introduced only to inflame the passions of the jury.” Appellant’s Br. at 71. With respect to the penalty-phase testimony, he goes even further, claiming that the doctors’ testimony was “entirely irrelevant.” Id. Given the OCCA’s observations to the contrary, we cannot agree. In our view, it was reasonable to conclude that the testimony was relevant because it supported the state’s theory that Williams’s crime showed “a great risk of death to more than one person.” Williams, 188 P.3d at 224. We think it follows that the OCCA could have reasonably concluded that counsel’s failure to object on relevance grounds was not deficient performance. 8. Failure to Object to Detective Felton’s Testimony The investigating police officer, Detective Felton, testified that shortly after Williams’s arrest, he saw abrasions and lacerations on Williams’s shin. When asked if he found anything significant about the injuries, Felton testified: “Meeting with the other detectives it was determined that one of the suspects had fled the bank by jumping off the second floor balcony. These looked just like injuries that one might receive by, you know, jumping and falling.” (Trial Tr. vol. V at 1181). Williams contends that this testimony was plainly inadmissible because it was not based on Felton’s perceptions as a lay witness. Presumably, he thinks that his counsel should have objected for this reason. The OCCA concluded that Felton’s testimony was improper because it was based on specialized knowledge. Williams, 188 P.3d at 225. We accept this and assume that a reasonably competent lawyer would have objected. Still, we think the OCCA could have reasonably concluded that there was no reasonable probability of acquittal but for counsel’s unprofessional errors. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. \"While Felton’s testimony certainly linked Williams to the crime, and while testimony from a" }, { "docid": "794006", "title": "", "text": "expectation of privacy in the contents of the tape which he created and owned. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Walter, 447 U.S. at 654, 100 S.Ct. at 2400. Because it must, for reasons stated above, be suppressed as to Felton, there is no way that it can be admitted in evidence at a joint trial against Serrao alone, because it is clear that to have relevance and meaning to the jury it must be revealed that it is a conversation between co-conspirators; i.e., Felton and Serrao, or under Count Eight a conversation between Felton and Serrao relative to the “whereabouts of John Zorak a/k/a Johnny, a co-conspirator in Count One above, and the location of a quantity of marihuana.” Count Eight, Indictment at Criminal No. 83-49. This obviously would violate Felton’s rights. Therefore, the contents of the tape will be suppressed as evidence in this case. IV Defendant Bruce Nancy Bruce has made a motion to sever on the grounds that her defense would be antagonistic to that of Felton. She asserts that the antagonism arises out of her former personal relationship with Felton. Specifically, Bruce claims that she was not part of the Felton conspiracy, that she merely followed Felton’s instructions, and that now she has learned that her name was forged in the purchase of personalty and that real property was placed in her name without her consent. She contends that she has records that would be exculpatory of her but inculpatory of Felton. A motion to sever is within the sound discretion of the court. United States v. De Larosa, 450 F.2d 1057 (3d Cir.1971). Antagonism, per se, between the defenses of the defendants does not require severance. United States v. Davis, 623 F.2d 188 (1st Cir.1980); United States v. Barber, 442 F.2d 517 (3d Cir. 1971). The desire of the defendants to blame each other is an insufficient reason as well. United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). Severance will be granted only" }, { "docid": "843955", "title": "", "text": "of agency decision-makers. Faced with the defendants’ motion for a protective order, and following Overton Park, we concluded that the privilege traditionally given to agency decision-makers was outweighed in this case by the need for the information sought, and we therefore denied the motion for a protective order. II. The information Gulf sought from Mr. Vipperman and Mr. Walker is not privileged. The questions asked of Mr. Vipperman and Mr. Walker and objected to by defendants were within the perimeter of proposed subjects for inquiry set forth in Gulf’s memorandum in opposition to the defendants’ motion for a protective order. The information sought was thus relevant to this litigation, and, absent some privilege attached to the information, should be provided. So far as defendants’ objections were based upon a claim of privilege for the decisional process of agency officials, they cannot be sustained. Overton Park, supra. Nor, with respect to Mr. Walker, can they be sustained under the attorney-client privilege, a barrier to inquiry which defendants raised at his deposition. Defendants seem not to understand that they bear the burden of proving the applicability of the privilege to the information sought by Gulf. International Tel. & Tel. Corp. v. United Tel. Co. of Florida, 60 F.R.D. 177 (M.D.Fla.1973). Defendants’ statement that “Gulf has failed to even attempt to demonstrate why the privilege should not apply notwithstanding the fact that it was clearly raised” demonstrates a misconception of the relevant burden of proof; it is the defendants who must show, for each question objected to, that the question elicits communications made to the attorney “(a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding . . . ” United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358 (D.Mass.1950). The defendants have failed to meet this burden. Instead, they have made a blanket. assertion of the attorney-client privilege, suggesting that because Mr. Walker’s position bore the title of General Counsel, all information gained by him during" }, { "docid": "793950", "title": "", "text": "stating: The Commonwealth of Pa., at the request of the U.S. Attorney’s Office has transferred this investigation and subsequent prosecution to the U.S. Attorney’s Office but as of this date indictments have not been returned against these defendants by the Federal Grand Jury. The Federal Government is actively pursuing this investigation and will prosecute the above named individuals for the same criminal conduct as charged by the Commonwealth. The motion was granted and trial was rescheduled to commence on October 29, 1981, but on October 23, 1981, all four informations were dismissed on motion of the District Attorney. In support of those motions, the District Attorney stated that “prosecution in this case is being assumed by the United States Attorney’s Office.” Dean Felton, who was in custody, learned of the dismissal of the state charges on October 30, 1981, and promptly filed an objection to that dismissal. In his objection, he alleged that the dismissal of the state charges in anticipation of federal prosecution violated his state and federal rights to a speedy trial. He demanded that the court vacate the dismissal and order those charges to proceed to trial. The motion was denied. On March 31, 1983, shortly after Dean Felton had been released from federal custody under the sentence imposed on July 1, 1981, the instant ten-count indictment was returned. Count One of that indictment charges that Dean Felton, Nancy E. Bruce, John Zorak, Anthony Serrao, Richard Cox, James Thurman, John Hathorne, “and others to the grand jury known and unknown,” conspired “from on or about the beginning of 1979 through on or about May 13, 1981,” to distribute marijuana in violation of 21 U.S.C. § 846. Count Two charges that in violation of 21 U.S.C. § 848 Dean Felton, “in concert with at least five other persons,” engaged in a “continuing criminal enterprise” over the same time period as the conspiracy charged in Count One. Counts Three through Seven charge Dean Felton with possession with intent to distribute unspecified quantities of marijuana at various times from “in or about the spring of 1979” to on or about" }, { "docid": "793982", "title": "", "text": "this included collecting rents and showing the premises to prospective renters. Thus, Quality had authority based on contract to act on behalf of Felton as his agent. Second, Quality had authority based simply on the fact that it shared with Felton a general access to the properties. United States v. Matlock, 415 U.S. 164, 171 at n. 7, 94 S.Ct. 988, 993 at n. 7, 39 L.Ed.2d 242 (1974). Felton had given Quality keys to the areas. United States v. Murphy, 506 F.2d 529 (9th Cir.1974), cert. denied, 420 U.S. 996, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975). Applying the “totality of circumstances” test of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we find that Quality had the authority to consent to the search by Utah officials, if such a request had, in fact, been made. By giving Quality keys, and by contract, Felton assumed the risk that Quality would stumble upon the contraband and turn it over to authorities, consent to a search of the areas, or even take the initiative and request the presence of authorities while it exercised its responsibilities in the storage areas. We here deny defendant Felton’s motion to suppress the physical items seized during the “Utah” searches. We subsequently will address the issue more clearly raised by defendant Serrao concerning the “search” of the contents of the physical tapes seized. That matter is treated under our discussion of defendant Serrao’s motion to suppress. Boring Papers Defendant Felton has moved to suppress information he gave to one Terry Boring on the grounds that this information was given by defendant Felton for the purpose of initiating an attorney/client relationship with attorney David Schrager. This information was turned over to government officials, Felton contends, by Boring after he was bribed by promises made by those officials to place Boring, a drug addict, into a drug rehabilitation program. We will deny this motion. It is undisputed that Boring was a lay person and we find, therefore, that defendant Felton did not have a reasonable expectation of an attorney/client privilege in the materials" }, { "docid": "7781567", "title": "", "text": "ostensibly a friend of Felton, requested Robert Fleming, president of Quality, to search one of Felton’s houses for the purpose of locating some clothing left there by her. Quality subsequently located the clothing in a storage area on one of the properties and in a storage space that Quality Properties had rented in Felton’s name. Thereafter, state law enforcement officers advised Fleming that Felton was under investigation for. narcotics activities'. On February 17, 1982, Fleming and one of his employees, Loren Woods, went to the storage area to look for Bruce’s clothing. Two officers of the Utah attorney general’s office accompanied Fleming and Woods. While examining the storage areas in Fel-ton’s home, Woods found marijuana and certain tape recordings, which he turned over to the Utah authorities. The Utah authorities then turned the tapes over to the Pittsburgh authorities. Without obtaining a warrant, Pittsburgh law enforcement agents played the tapes. This investigation revealed that these tapes included recordings of two telephone conversations made by Felton; one, between Felton and Cox; the other, between Felton and Serrao. Cox and Serrao successfully moved to suppress the recordings in district' court. The district court ruled that the searches of the storage areas were private searches conducted by the owner’s real estate manager and not by government agents. The court made detailed findings of fact supporting its conclusion that these private searches did not offend the fourth amendment. The government does not contest this ruling. The district court, however, also held that in the absence of a search warrant the government agents were not permitted to listen to the tape recordings or introduce their contents in evidence. Therefore, the court suppressed the contents of the tape recordings and the fruits thereof. The government has appealed the suppression order. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3731. II. In granting the suppression order, the district court reasoned “that the defendant Serrao had an expectation that the underlying phone conversation would be private, and, while he assumed the risk that the party in whom he was confiding was an informant or would" }, { "docid": "793977", "title": "", "text": "that affiant knew of Felton’s prior arrest for large quantities of marijuana. Bearing in mind that these affidavits are prepared by lay police officers who cannot be expected to employ the precise terminology of a lawyer drafting a legal document, and after the defendant’s affidavits relative to interviews of Mr. Macek, and Mr. Macek’s testimony itself, we do not believe the defendant has met his burden of proof under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The defendant failed to establish that Mr. Macek did not in fact make significant material statements to the police upon which they relied in applying for the search warrant (see Tr. hearing of July 14-15, 1983, at pp. 172-173), or that the police uttered deliberate falsehoods or demonstrated a reckless disregard for the truth in their affidavits to the issuing magistrate. For the foregoing reasons and those stated by the court on the record of the hearing on July 14 and 15, 1983, the motion to suppress will be denied. (See Tr. of that hearing at pp. 180 ff., Clerk’s Docket No. 136 at Cr. 83-49.) 2. Rent-A-Spot, Allegheny Valley The defendant Felton also challenges a search at Allegheny Valley Rent-A-Spot pursuant tó a search warrant which was based upon essentially the same information as the Kutz warrant. The defendant’s objections to this search are the same as those concerning the search at Kutz Industrial Park. Accordingly, this motion will be denied for the reasons stated above. 3. Rent-A-Space, Pitcairn The defendant’s objections to this search were premised on the belief that the search was conducted without a warrant. The government produced a warrant, and the defendant has not challenged it. Therefore, the defendant’s motion to suppress the Pitcairn search will be denied. 4. Utah Searches Two warrantless searches in Salt Lake City, Utah, one at a residence, the other at a “Rent-A-Space”, were conducted by Quality Properties (“Quality”), a firm hired by Felton to serve as “manager” of the subject properties. The searches, which were conducted in the presence of Utah police authorities, uncovered various items including" }, { "docid": "23066140", "title": "", "text": "setup, that nobody placed Dennis on Route 35, and that Dennis was there because of his own actions.” Diesel also testified that Laspisa was ordered out of the room by Larkin, who angrily told Laspisa that Diesel “was not being treated like an animal, he is not being treated like a criminal, mind your own business in this investigation.” 4. The Investigation at the Somers Barracks Around 11:30am, O’Connell, Noonan, Felton, Laspisa and Diesel went to the Somers barracks, arriving around noon, and Larkin went home. Diesel alleged that the move to Somers was designed to humiliate him further by prolonging and drawing attention to the investigation. In their post-trial motion and on appeal, the defendants claim that the Lewisboro barracks “lacked the space and supplies need[ed] to conduct the first phase of the investigation.” At Somers, Diesel again visited the men’s room, after which the investigation resumed. Felton conducted the bulk of the questioning and O’Connell and Noonan occasionally interjected questions. Diesel gave a fuller account of himself than he had given at Lewisboro, and was ordered to give a written statement. Over his objection, Diesel was also ordered to remove the bandages on his nose so that pictures of his injury could be taken. As Diesel anticipated, the wound began to bleed again. At 2:30pm — six hours after Officer Rutledge first woke him up outside the firehouse — Diesel was released and driven home by Laspisa. 5. Felton’s Investigation Because of Diesel’s personal relationships with Larkin, Noonan and O’Con-nell — and their prior conflict with him over the Peekskill investigation — Larkin decided that none of them should lead the investigation of Diesel’s misconduct. At some point in the day, Larkin assigned the investigation to Felton, who was experienced in internal affairs, was new to the troop, did not know Diesel, and had no connection to the Peekskill investigation. Over the next several weeks, Felton interviewed and took statements from all the persons involved in the incident. It was during this time that Felton ordered Trooper Coley to supplement his first memo. Felton’s Investigation Report concluded that" }, { "docid": "793979", "title": "", "text": "a small quantity of a controlled substance, a tape recording of a telephone conversation between defendant Felton and the defendant Serrao, and a tape of a conversation between the defendant Felton and the defendant Cox. The defendant Felton now seeks to suppress those items on the grounds that the search was in violation of his Fourth Amendment rights because Quality did not have his authorization to conduct or to consent to a search and that, in the alternative, the search went beyond the scope of any consent or authority. The court finds that the searches did not implicate the Fourth Amendment because they were in fact private searches motivated by legitimate reasons which did not involve governmental action. United States v. Jacobsen, — U.S.—, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Gomez, 614 F.2d 643 (9th Cir.1979). We find from testimony at the July, 1983, hearing that the Utah authorities were present at the search areas at the request of Quality, and that the searches were initiated by a request received by Quality from defendant Nancy Bruce to ship Bruce’s clothing and personal effects stored in the two storage areas to her. This request implicitly authorized a search of the areas in which clothing and personal effects would be found, since these items were mixed among various other items also stored at those places. The court finds that (1) Quality had the responsibility of managing and maintaining the properties of defendant Felton at which defendant Bruce’s effects were stored (Tr. I, p. 325), (2) Mr. Fleming, broker/president of Quality, was contacted by Agent Steven Todoric, II, of the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigations and informed that defendant Felton was being investigated (Tr. I, p. 333), (3) Todoric did not suggest that Fleming search the properties (Tr. I, p. 334), (4) Mr. Fleming was not pressured into consenting to the presence of the Utah authorities (Tr. I, p. 353-354), (5) Mr. Fleming, in order to protect the interests of Quality, requested" }, { "docid": "794005", "title": "", "text": "had neither standing nor a constitutionally protected reasonable expectation of privacy in the contents of the tape, as distinguished from the actual telephone conversation out of which it grew, because, inter alia, the tape exist separate and apart from the telephone conversation, the tape was created by a private citizen through no violation of defendant Serrao’s constitutional or federal statutory rights, and in fact Serrao did not know of its existence prior to the commencement of this case. Therefore, since he could have no proprietary or possessory interest in the physical tape or the physical area searched, and logically could have no expectation of privacy in the contents of an object that he did not know existed, he has no Fourth Amendment right to protect or standing to raise. Even if that thesis proved valid, however, it would be of academic interest at best, since it is clear that defendant Felton, who has joined by agreement of counsel in all relevant motions filed by other defendants, clearly has both standing and a constitutionally protected reasonable expectation of privacy in the contents of the tape which he created and owned. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Walter, 447 U.S. at 654, 100 S.Ct. at 2400. Because it must, for reasons stated above, be suppressed as to Felton, there is no way that it can be admitted in evidence at a joint trial against Serrao alone, because it is clear that to have relevance and meaning to the jury it must be revealed that it is a conversation between co-conspirators; i.e., Felton and Serrao, or under Count Eight a conversation between Felton and Serrao relative to the “whereabouts of John Zorak a/k/a Johnny, a co-conspirator in Count One above, and the location of a quantity of marihuana.” Count Eight, Indictment at Criminal No. 83-49. This obviously would violate Felton’s rights. Therefore, the contents of the tape will be suppressed as evidence in this case. IV Defendant Bruce Nancy Bruce has made a motion to sever on the grounds that her defense would be antagonistic" }, { "docid": "20695746", "title": "", "text": "Minnesota, 446 F.2d 124 (8th Cir.1971) (reviewing court will not ordinarily rule on issues not properly presented or raised by government in trial court). III. CONCLUSION For the foregoing reasons, we will reverse appellant’s CCE conviction. This matter will be remanded to the district court with instructions to dismiss the CCE count of the indictment. . The other charges against Farber included one count of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1982), and eighteen counts of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). . In Felton, we reversed the district court’s denial of a defendant’s pretrial motion to dismiss a drug conspiracy indictment on double jeopardy grounds. 753 F.2d at 281. In that case, as in this one, the government had the burden of proving the separate conspiracies by a preponderance of the evidence, or to demonstrate that it was more likely than not that there was more than one conspiracy.... Having elected to put in a thin case to prove separate conspiracies, the government bore the risk of failing to meet its burden. Id.; accord Gilmore v. Zimmerman, 793 F.2d 564, 570 (3d Cir.1986) (\"Felton ... supports] the proposition that a defendant whose first indictment is resolved by his [or her] guilty plea may not be tried for the same offense on a later indictment\"), cert. denied, — U.S. -, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986); cf. Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (“The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.”); Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942) (\"a single agreement to commit an offense does not become several conspiracies because it continues over a period of time”). . Although it could have done so, the government took no appeal from the district court’s dismissal of the" }, { "docid": "793976", "title": "", "text": "isolation were insufficient bases from which to draw an inference that criminal activity was afoot, his observations did link the defendant and a rental van with a similar rental van in which marijuana was observed by the informant. Gates, — U.S. at n. 13, 103 S.Ct. at n. 13, 76 L.Ed.2d at n. 13. Third, we find that the affiant’s knowledge of Felton’s prior arrest for possession of marijuana also supports the credibility of the informant. Id. The defendant cites us to United States v. Canestri, 518 F.2d 269 (2d Cir.1975). That case held that a prior arrest was at least a factor which the magistrate could consider, although alone the factor would be insufficient to justify a warrant. Finally, the defendant argues that there were misstatements in the affidavit without which there could have been no showing of probable cause. The alleged misstatements are (1) that there was an attempted burglary, (2) that Mr. Macek had seen Felton only at night, observed suspicious activity, and remembered a van of a particular color, and (3) that affiant knew of Felton’s prior arrest for large quantities of marijuana. Bearing in mind that these affidavits are prepared by lay police officers who cannot be expected to employ the precise terminology of a lawyer drafting a legal document, and after the defendant’s affidavits relative to interviews of Mr. Macek, and Mr. Macek’s testimony itself, we do not believe the defendant has met his burden of proof under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The defendant failed to establish that Mr. Macek did not in fact make significant material statements to the police upon which they relied in applying for the search warrant (see Tr. hearing of July 14-15, 1983, at pp. 172-173), or that the police uttered deliberate falsehoods or demonstrated a reckless disregard for the truth in their affidavits to the issuing magistrate. For the foregoing reasons and those stated by the court on the record of the hearing on July 14 and 15, 1983, the motion to suppress will be denied. (See Tr. of" }, { "docid": "793983", "title": "", "text": "take the initiative and request the presence of authorities while it exercised its responsibilities in the storage areas. We here deny defendant Felton’s motion to suppress the physical items seized during the “Utah” searches. We subsequently will address the issue more clearly raised by defendant Serrao concerning the “search” of the contents of the physical tapes seized. That matter is treated under our discussion of defendant Serrao’s motion to suppress. Boring Papers Defendant Felton has moved to suppress information he gave to one Terry Boring on the grounds that this information was given by defendant Felton for the purpose of initiating an attorney/client relationship with attorney David Schrager. This information was turned over to government officials, Felton contends, by Boring after he was bribed by promises made by those officials to place Boring, a drug addict, into a drug rehabilitation program. We will deny this motion. It is undisputed that Boring was a lay person and we find, therefore, that defendant Felton did not have a reasonable expectation of an attorney/client privilege in the materials that he turned over to Boring. In re Grand Jury Investigation, 599 F.2d 1224 (3d Cir.1979); United States v. United Shoe Mfg. Co., 89 F.Supp. 357 (D.Mass. 1950). The record reveals that while Boring was asked to “check out” several attorneys, Boring was given the files in question and was hired at $250.00 a week to perform various other tasks for Felton (Tr. I, pp. 207, 224), pursuant to which he was given Felton’s power of attorney. (Tr. I, p. 210-11). We find that Felton and Schrager never entered into an attorney/client relationship (Tr. I, pp. 201, 218), nor did Felton give the files to Boring in expectation of or in preparation for an attorney/client relationship with Schrager. In fact, several weeks after Felton sent the last of the files to Boring, Felton called Schrager, not to retain him as counsel, but to find out why Boring had not been performing the aforesaid tasks for which he had been hired. (Tr. I, p. 217). These files which were captioned “Mission Impossible”, were directed to Boring," }, { "docid": "793981", "title": "", "text": "the presence of the authorities, and had his agent, Mr. Woods, conduct the search for defendant Bruce’s belongings (Tr. I, p. 356), (6) the Utah authorities did not instruct Mr. Woods as to how to conduct the search (Tr. II, p. 45), and (7) Mr. Woods searched the contents of the storage areas and it was he, acting in a manner consistent with his understanding of his employer’s instructions, who offered items other than clothing for the perusal of the officers. They did not request to see or inspect any specific item. (Tr. II, pp. 5-7, pp. 24-25). Thus, the officers’ role in the search was passive, United States v. Sherwin, 539 F.2d 1 (9th Cir.1976); see also, Jacobsen, supra. Even if these were “Fourth Amendment” searches, however, we find that the officers were present at the search areas with the consent of Quality and that Quality had the authority to give consent. This authority had two independent bases. First, Quality was hired by Felton to manage and maintain the properties (Tr. I, p. 325); this included collecting rents and showing the premises to prospective renters. Thus, Quality had authority based on contract to act on behalf of Felton as his agent. Second, Quality had authority based simply on the fact that it shared with Felton a general access to the properties. United States v. Matlock, 415 U.S. 164, 171 at n. 7, 94 S.Ct. 988, 993 at n. 7, 39 L.Ed.2d 242 (1974). Felton had given Quality keys to the areas. United States v. Murphy, 506 F.2d 529 (9th Cir.1974), cert. denied, 420 U.S. 996, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975). Applying the “totality of circumstances” test of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we find that Quality had the authority to consent to the search by Utah officials, if such a request had, in fact, been made. By giving Quality keys, and by contract, Felton assumed the risk that Quality would stumble upon the contraband and turn it over to authorities, consent to a search of the areas, or even" }, { "docid": "7781566", "title": "", "text": "OPINION OF THE COURT ALDISERT, Chief Judge. A number of defendants are named in a ten-count indictment charging a conspiracy to possess with intent to distribute marijuana and various associated charges, including performance of overt acts in furtherance of the conspiracy. During the pend-ency of the conspiracy, Dean Felton, one of the defendants, tape recorded certain telephone conversations that he had with two co-defendants, Anthony Serrao and Richard Cox, without their knowledge. The police now possess these tapes. This appeal by the government from the trial court’s order, 592 F.Supp. 172, suppressing the re corded conversations of Serrao and Cox requires us to decide whether introducing the contents of these recordings as evidence constitutes an unreasonable invasion of appellees’ legitimate expectation of privacy in the conversations. We find no such protected interest, and therefore reverse the order of the district court. I. The facts are not in dispute. Felton owned three houses in Salt Lake City, Utah, that were managed by Quality Properties, a Utah real estate company. Nancy Bruce, one of the co-defendants and ostensibly a friend of Felton, requested Robert Fleming, president of Quality, to search one of Felton’s houses for the purpose of locating some clothing left there by her. Quality subsequently located the clothing in a storage area on one of the properties and in a storage space that Quality Properties had rented in Felton’s name. Thereafter, state law enforcement officers advised Fleming that Felton was under investigation for. narcotics activities'. On February 17, 1982, Fleming and one of his employees, Loren Woods, went to the storage area to look for Bruce’s clothing. Two officers of the Utah attorney general’s office accompanied Fleming and Woods. While examining the storage areas in Fel-ton’s home, Woods found marijuana and certain tape recordings, which he turned over to the Utah authorities. The Utah authorities then turned the tapes over to the Pittsburgh authorities. Without obtaining a warrant, Pittsburgh law enforcement agents played the tapes. This investigation revealed that these tapes included recordings of two telephone conversations made by Felton; one, between Felton and Cox; the other, between Felton and" }, { "docid": "793978", "title": "", "text": "that hearing at pp. 180 ff., Clerk’s Docket No. 136 at Cr. 83-49.) 2. Rent-A-Spot, Allegheny Valley The defendant Felton also challenges a search at Allegheny Valley Rent-A-Spot pursuant tó a search warrant which was based upon essentially the same information as the Kutz warrant. The defendant’s objections to this search are the same as those concerning the search at Kutz Industrial Park. Accordingly, this motion will be denied for the reasons stated above. 3. Rent-A-Space, Pitcairn The defendant’s objections to this search were premised on the belief that the search was conducted without a warrant. The government produced a warrant, and the defendant has not challenged it. Therefore, the defendant’s motion to suppress the Pitcairn search will be denied. 4. Utah Searches Two warrantless searches in Salt Lake City, Utah, one at a residence, the other at a “Rent-A-Space”, were conducted by Quality Properties (“Quality”), a firm hired by Felton to serve as “manager” of the subject properties. The searches, which were conducted in the presence of Utah police authorities, uncovered various items including a small quantity of a controlled substance, a tape recording of a telephone conversation between defendant Felton and the defendant Serrao, and a tape of a conversation between the defendant Felton and the defendant Cox. The defendant Felton now seeks to suppress those items on the grounds that the search was in violation of his Fourth Amendment rights because Quality did not have his authorization to conduct or to consent to a search and that, in the alternative, the search went beyond the scope of any consent or authority. The court finds that the searches did not implicate the Fourth Amendment because they were in fact private searches motivated by legitimate reasons which did not involve governmental action. United States v. Jacobsen, — U.S.—, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Gomez, 614 F.2d 643 (9th Cir.1979). We find from testimony at the July, 1983, hearing that the Utah authorities were present at the search areas at the request" }, { "docid": "793984", "title": "", "text": "that he turned over to Boring. In re Grand Jury Investigation, 599 F.2d 1224 (3d Cir.1979); United States v. United Shoe Mfg. Co., 89 F.Supp. 357 (D.Mass. 1950). The record reveals that while Boring was asked to “check out” several attorneys, Boring was given the files in question and was hired at $250.00 a week to perform various other tasks for Felton (Tr. I, pp. 207, 224), pursuant to which he was given Felton’s power of attorney. (Tr. I, p. 210-11). We find that Felton and Schrager never entered into an attorney/client relationship (Tr. I, pp. 201, 218), nor did Felton give the files to Boring in expectation of or in preparation for an attorney/client relationship with Schrager. In fact, several weeks after Felton sent the last of the files to Boring, Felton called Schrager, not to retain him as counsel, but to find out why Boring had not been performing the aforesaid tasks for which he had been hired. (Tr. I, p. 217). These files which were captioned “Mission Impossible”, were directed to Boring, not Schrager. (Tr. I, pp. 187-91, p. 214). Thus, on this record, no attorney/client relationship was sought to be established by Felton with Schrager, and no attorney/client privilege existed in the files Felton turned over to Boring. The court further finds that the government did not engage in bribery or any misconduct in the acquisition of those files, although Boring was given a promise of help with his drug problem. (Tr. I, pp. 266-9). Moreover, the government in obtaining the files had no reason to believe that they were part of any attorney/client dealings. (Tr. II, pp. 131, 136-7), since Boring told the government agents that he was doing work for Felton and offered the files as related to that work. (Tr. II, p. 137). Photographic Spread The defendant Felton has moved for an order compelling the government to reveal the circumstances surrounding the display of photographs of defendant Felton by government agents to potential witnesses. The defendant contends that the use of those photographs was prejudicial and that any in-court identification by a witness" } ]

[ { "docid": "23340730", "title": "", "text": "such as this. The right allegedly infringed is the same in both contexts: the right to effective participation in the electoral process. An unconstitutional gerrymander violates this right by compartmentalizing or fencing out a group, e. g., Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct.. 125, 5 L.Ed.2d 110 (1960), or by slicing up a compact minority, e. g., Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) (en bane), cert. denied, - U.S. -, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974). An invidious at-large scheme merely achieves the same end, denial of effective participation, by submerging an interest group in a constituency large enough and polarized enough to place that group in the minority consistently. That the constitutional tests should be the same whether the right to an equally effective vote is denied by drawing district lines or erasing them is illustrated in a number of our cases. We have repeatedly held the Zimmer criteria relevant to gerrymander as well as dilution cases. In Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974), a case finding a racially motivated gerrymander that fragmented “what could otherwise be a cohesive voting community,” id. at 679, we stated: The standards for decision in dilution cases are developed primarily in cases dealing with [at-large] districting [citing, inter alia, White v. Regester, Whitcomb v. Chavis, and Zimmer v. McKeithen]. But “we have no hesitation in applying [those tests to] measure . . the constitutionality of reapportionment plans involving only single-member districts. In each instance, we are required to determine the same question, whether or not there has been an unconstitutional manipulation of electoral district boundaries so as to minimize or dilute the voting strength of a minority class or interest.” Id. at 678 (quoting Howard v. Adams County Board of Supervisors, 453 F.2d 455, 458 n. 2 (5th Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972)) (emphasis added); accord, Kirksey v. Board of Supervisors, 554 F.2d at 143. Since we find no constitutionally significant distinction between this" } ]

[ { "docid": "23340729", "title": "", "text": "their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York legislature ‘was either motivated by racial considerations or in fact drew the districts on racial lines’; the plaintiffs had not shown that the statute ‘was the product of a state contrivance to segregate on the basis of race or place of origin.’ 376 U.S. at 56, 58, 84 S.Ct. at 605, 11 L.Ed.2d, at 515. The dissenters were in agreement that the issue was whether the ‘boundaries . . . were purposefully drawn on racial lines.’ 376 U.S. at 67, 84 S.Ct. at 611, 11 L.Ed.2d at 522. 426 U.S. at 240, 96 S.Ct. at 2047; accord, Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. This very recent reaffirmation of the holding in Wright leaves no doubt that a showing of intent is a necessary element in a case alleging a racial gerrymander. We see no distinction that would call for different constitutional requisites in a racial gerrymander case than in a voting dilution case such as this. The right allegedly infringed is the same in both contexts: the right to effective participation in the electoral process. An unconstitutional gerrymander violates this right by compartmentalizing or fencing out a group, e. g., Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct.. 125, 5 L.Ed.2d 110 (1960), or by slicing up a compact minority, e. g., Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) (en bane), cert. denied, - U.S. -, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974). An invidious at-large scheme merely achieves the same end, denial of effective participation, by submerging an interest group in a constituency large enough and polarized enough to place that group in the minority consistently. That the constitutional tests should be the same whether the right to an equally effective vote is denied by drawing district lines or erasing them is illustrated in a number of our cases. We have repeatedly held the Zimmer criteria relevant to gerrymander as well as dilution cases." }, { "docid": "749573", "title": "", "text": "at-large or multimember districts. Though the Supreme Court has not directly addressed the issue, this circuit has recognized that the standards for decision developed in the multimember or at-large districting cases govern the adjudication of claims involving the constitutionality of single-member districts. Nevett v. Sides, 571 F.2d 209 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980); Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974). See R. Dixon, Democratic Representation: Reapportionment in Law and Politics 484 (1968). With regard to the applicability of the dilution rationale to congressional districting cases, we believe the better view is that irrespective of whether a state legislative or congressional districting plan is the subject of dispute, “ 'we are required to determine the same question, whether or not there has been an unconstitutional manipulation of the electoral district boundaries so as to minimize or dilute the voting strength of a minority class or interest.' \" Nevett v. Sides, 571 F.2d at 219 (quoting from Robinson v. Commissioners Court, 505 F.2d at 678) (emphasis in original). See, e.g., In re: Pennsylvania Congressional Districts Reapportionment Cases, 567 F.Supp. 1507 (M.D.Pa.1982) (three-judge court), aff'd sub nom. Simon v. Davis,U.S. -, 103 S.Ct. 3564, 77 L.Ed.2d 1405 (1983); In re: Illinois Congressional Districts Reapportionment Cases, No. 81-C-3915, (N.D.Ill.1981) (three-judge court), aff’d mem. sub nom. Ryan v. Otto, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982). Similarly, the \"totality of circumstances” analysis, derived from the multimember dilution cases of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (cn banc), aff’d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1975) (per curiam), is equally applicable to state legislative or congressional districting schemes. According to the Senate Judiciary Committee: Whitcomb [v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) ]," }, { "docid": "749546", "title": "", "text": "825 (1977). Minority voting strength may be dissipated through one of two familiar gerrymandering techniques: “stacking,” or the overconcentration of members of a specific group in numbers greatly in excess of the percentage required to exercise a meaningful choice at the ballot box, or “cracking,” the division of a cohesive population concentration. Karcher v. Daggett, 103 S.Ct. at 2672 n. 13 (Stevens, J., concurring); Nevett v. Sides, 571 F.2d at 219; R. Morrill, Political Redistricting and Geographic Theory at 14-15, 19-20 (1981). See also United Jewish Organizations, Inc. v. Carey, 430 U.S. at 158, 97 S.Ct. at 1006. When a redistricting plan employs the latter technique in a racially polarized environment, the result is predictable: Like a multimember plan, [a single-member district plan which fractures a geographically concentrated minority voting population] ... tends to dilute the voting strength of the minority. In Robinson v. Commissioner’s Court, supra, a panel of this court noted that “The most crucial and precise instrument of the ... denial of the black minority’s equal access to political participation, however, remains the gerrymander of precinct lines so as to fragment what could otherwise be a cohesive minority voting community____ This dismemberment of the black voting community ... [may have] the ... effect of debilitating the organization and decreasing the participation of black voters.” Kirksey v. Board of Supervisors, 554 F.2d 139, 149 (5th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977) (quoting from Robinson v. Commissioner’s Court, 505 F.2d 674, 679 (5th Cir.1974). See also Carstens v. Lamm, 543 F.Supp. 68, 82 (D.Colo.1982) (three-judge court) {“... a redistricting plan ... should not fracture a natural racial or ethnic community. ...”). Act 20’s jagged line dissects a large concentrated community of black voters residing in Orleans Parish, dispersing that community into the First and Second Congressional Districts. With unerring precision, this line slices through the City’s traditional political subunit, the ward, in a racially selective manner, leaving intact predominantly white wards while carving up those densely populated by blacks. Homogeneous black precincts are separated; white precincts are not. Racial divisions have been" }, { "docid": "23336478", "title": "", "text": "did not suffice. Initially, this court determined that a voting dilution case did not necessarily require intent where a political system demonstrably continued the effects of historical discrimination. Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139, 147-48 & n. 16 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). In Nevett II, 571 F.2d at 217-21, the court emphasized that Davis and Arlington Heights required that a fourteenth amendment claim of voting dilution satisfy the purpose standard generally applicable in equal protection cases. Reaffirming the observation in Kirksey, the Nevett II court proposed three means by which a plaintiff could meet the purpose standard. A plaintiff could demonstrate either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the government body maintained the scheme with discriminatory purpose, or that the system furthered preexisting intentional discrimination. Id. at 221. The Nevett court, moreover, indicated that courts could determine the existence of discriminatory purpose within the framework of the Zimmer analysis. 571 F.2d at 222-23. Indeed, the court observed that two Zimmer factors — -unresponsiveness and tenuousness — bore little relevance to issues other than intent. Id. at 222. The Zimmer factors, the Nevett court stated, inform courts of the type of circumstantial evidence that would show intentional vote dilution. By weighing the “significance and strength” of the evidence, the district court could determine whether a minority’s voting strength had been intentionally diluted. Id. at 226. On the same day as the decision in Nevett II, the same panel of this court decided Bolden v. City of Mobile, 571 F.2d 238 (5th Cir.1978), rev’d and remanded, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Applying the standards articulated in Nevett, the court affirmed a district court finding of voting dilution based on the Zimmer factors. The court concluded that the evidence demonstrated that the City had maintained an at-large system for discriminatory purposes. Id. at 246. The Supreme Court reversed. Without agreeing on a single majority opinion, the Court rejected pre-Davis" }, { "docid": "23336454", "title": "", "text": "While that appeal was pending, the Supreme Court announced dramatic changes in the law of voting dilution. In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court explicitly stated, for the first time, that a claim of denial of access by a minority to the political processes required a showing of a purpose to discriminate. Id. at 66-71, 100 S.Ct. at 1499-1501 (plurality opinion of Stewart, J.); accord id. at 99-101, 100 S.Ct. at 1516-1517 (White, J., dissenting). A plurality of the Justices, moreover, repudiated the then-prevailing view in this circuit that objective indicia of discrimination could establish intentional voting dilution. Id. at 72-74, 100 S.Ct. at 1502-1508 (plurality opinion of Stewart, J.) See generally Nevett v. Sides, 571 F.2d 209, 217-29 (5th Cir.1978) [hereinafter cited as Nevett II] (intent required, but objective factors can establish intent), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). Accordingly, we vacated the judgment and remanded to the district court. Jones v. City of Lubbock, 640 F.2d 777 (5th Cir.1981). Shortly thereafter, this court withdrew the mandate pending the outcome of another Supreme Court voting dilution case, Rogers v. Lodge, 458 U.S. 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Although, in Rogers, the Court reaffirmed that voting dilution claims required a showing of intent, the Court upheld a finding of dilution on the basis of objective indicia of discrimination. Id. at 622-27, 102 S.Ct. at 3278-81. We then returned this case to the district court for reconsideration in light of Rogers. Jones v. City of Lubbock, 682 F.2d 504 (5th Cir.1982). While the district court considered the case on remand, Congress worked yet another change in the law of voting dilution by amending the Voting Rights Act. In effect, Congress “overruled” Bolden. The district court held further hearings on January 10-13, 1983, and, on January 20, 1983, found that the at-large scheme violated both the fifteenth amendment and section 2 of the Voting Rights Act. Although the court largely adopted its previous findings, additional evidence of polarized voting, and of" }, { "docid": "23336516", "title": "", "text": "to ward off such discrimination in the future. Congress has not expanded the Constitution’s substantive guarantees, but simply redefined and strengthened the statutory protections around core constitutional values, thus exercising its authority within the confines of the Constitution. 574 F.Supp. at 347 (footnotes omitted). . The development of the constitutional jurisprudence on voting dilution has not lacked for instances in which courts have arguably revised the meaning of earlier cases. In the Supreme Court, for example, the Bolden plurality abruptly announced that the White v. Regester case, which contemporary courts had viewed as a “results” case, required a showing of discriminatory intent. See Bolden, 446 U.S. at 68-70, 100 S.Ct. at 1500-1501 (plurality opinion of Stewart, J.). Even the author of the opinion in White v. Regester apparently agreed. See Bolden, 446 U.S. at 101-03, 100 S.Ct. at 1517-18 (White, J., dissenting). A panel of the Fifth Circuit undertook a similar reinterpretation of Zimmer v. McKeithen. See Nevett II, 571 F.2d at 220-28. In both instances, fellow jurists criticized what they perceived as an inconsistency. See Bolden, 446 U.S. at 103-41, 100 S.Ct. at 1518-39 (Marshall, J., dissenting); Nevett, 571 F.2d at 231-38 (Wisdom, J., specially concurring). . Although courts and scholars may adopt differing views of the meaning of these cases, the following cases arguably applied the following distinct tests: 1. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1974) (en banc) (“results” test based on objective “primary” and “enhancing” factors), aff'd on other grounds sub nom. East Carroll Parish Schl. Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1975). 2. Kirksey v. Bd. of Supervisors, 554 F.2d 139 (5th Cir.) (en banc) (Zimmer test with additional requirement that plaintiff show continuation of effects of past official discrimination), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). 3. Nevett v. Sides, 571 F.2d 209 (5th Cir.1978) (intent test based on “totality of circumstances” under Zimmer factors), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). 4. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47" }, { "docid": "18341698", "title": "", "text": "73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). 14. In a single-member districting plan, black voting strength may be unconstitutionally and impermissibly diluted, minimized, and cancelled out (1) when heavy black population concentrations are unnecessarily fragmented and dispersed, and (2) when black population concentrations to deny black voters the opportunity to elect candidates of their choice. Connor v. Finch, 431 U.S. 407, 421-25, 97 S.Ct. 1828, 1837-1839, 52 L.Ed.2d 465 (1977); Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 139, 149 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Robinson v. Commissioners Court, Anderson County, Texas, 505 F.2d 674, 679 (5th Cir. 1974); Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621, 622-24 (5th Cir. 1974); Sims v. Baggett, 247 F.Supp. 96, 109 (M.D.Ala.1965) (three-judge court). 15. No state or political subdivision is required to search for ways to maximize the number of black voting age population districts. Likewise, no racial group has a constitutional or statutory right to an apportionment structure designed to maximize its political strength. Richmond v. United States, 422 U.S. 358, 370-72, 95 S.Ct. 2296, 2303-2304, 45 L.Ed.2d 245 (1975); Gilbert v. Sterrett, 509 F.2d 1389, 1394 (5th Cir. 1975); Cousins v. City Council of City of Chicago, 503 F.2d 912, 920 (7th Cir. 1974); Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir. 1973); Howard v. Adams County Board of Supervisors, 453 F.2d 455, 458 (5th Cir. 1972). 16. A legislative reapportionment plan that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise cannot have “the effect” of diluting or abridging the right to vote on account of race within the meaning of section 5 unless the new apportionment itself so discriminates as to violate the Constitution. Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976). 17. Although reapportionment plans, which are formulated with less concern for statistical accuracy and the" }, { "docid": "749571", "title": "", "text": "v. Haywood County, 544 F.Supp. 1122 (W.D.Tenn.1982) (grant of preliminary injunction). In Rybicki, the court found that application of § 2 to a districting plan did not present a retroactivity issue because its analysis focused on the effects of the plan in future elections. . In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), four Justices of the Supreme Court opined that vote dilution claims are cognizable solely under the Fourteenth Amendment. Under the plurality’s narrow construction, the Fifteenth Amendment bars only a direct, purposeful denial or abridgment of the right of a black person to vote. Since former § 2 of the Voting Rights Act of 1965 “was intended to have an effect no different from that of the Fifteenth Amendment itself,” id. at 61, 100 S.Ct. at 1496, it likewise was not deemed to support a dilution cause of action. Though the Fourth, Fifth and Eighth Circuits have concluded that the five-justice majority subscribes to the view that the Fifteenth Amendment gives rise to a dilution claim, see, e.g., Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.), aff’d mem. — U.S. —, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982); Washington v. Finlay, 664 F.2d 913 (4th Cir.1981); Lodge v. Buxton, 639 F.2d 1358 (5th Cir.1981), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), the Supreme Court itself tallies a minority of three. Rogers v. Lodge, 458 U.S. 613, 619 n. 6, 102 S.Ct. 3272, 3276 n. 6, 73 L.Ed.2d 1012 (1982) (“Three Justices [Justice Stevens, concurring, and Justices White and Marshall, dissenting] disagreed with the plurality's basis for putting aside the Fifteenth Amendment.”). The Rogers court expressed no opinion on this issue, leaving undisturbed the plurality’s decision with respect to the applicability of the Fifteenth Amendment and the original version of § 2 to dilution claims. See Campbell v. Gadsen County School Board; McMillan v. Escambia County. Nor, as discussed infra, need we consider the issue. . Dilution jurisprudence has evolved primarily in the context of constitutional challenges to state" }, { "docid": "5495808", "title": "", "text": "which is invidiously to minimize the voting strength of racial elements of the population. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). We have applied the proscription against minority vote dilution to local government units including parishes and counties, Zimmer v. McKeithen, 467 F.2d 1381 (5th Cir. 1972), reversed and remanded on other grounds, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d on other grounds, sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); and municipalities, Lipscomb v. Wise, 551 F.2d 1043 (5th Cir. 1977), rev’d on other grounds, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978); Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978). Cf. Wise v. Lipscomb, 437 U.S. 535, 549, 98 S.Ct. 2493, 2502, 57 L.Ed.2d 411, 422 (1978) (Rehnquist, J., concurring) (four justices express the view that the applicability of minority voting strength dilution doctrine to municipal governments is unsettled). See generally Bonapfél, Minority Challenges to At-Large Elections: The Dilution Problem, 10 Ga.L.Rev. 353 (1976); Note, 87 Harv.L. Rev. 1851 (1974). However, neither the fifteenth nor the fourteenth amendment commands proportional racial or ethnic representation. City of Mobile v. Bolden, 446 U.S. 55, 63 & 75, 100 S.Ct. 1490, 1498 & 1504, 64 L.Ed.2d 47, 56 & 63 (1980). “The Constitution . .. does not demand that each cognizable element of a constituency elect representatives in proportion to its voting strength. White v. Regester [412 U.S. at 765-66, 93 S.Ct. at 2339, 37 L.Ed.2d at 324]. . . . ” Nevett v. Sides, 571 F.2d 209, 216 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807" }, { "docid": "5495802", "title": "", "text": "the end of the term of incumbent officials. La. R.S. 33:1411 (Supp.1968). II. The Supreme Court entered the “political thicket” of legislative apportionment in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), by holding justiciable a challenge to the constitutional validity of an apportionment scheme under the fourteenth amendment’s equal protection guarantee. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court held unconstitutional the election of representatives to a state legislature from districts substantially unequal in population because this process dilutes the vote of members of more populous districts and thus denies them equal protection. Thereafter, the Court applied the one person, one vote precept to reapportionment of the voting constituencies in units of local government. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). We have applied the principle to local government units, such as school boards, Panior v. Iberville Parish School Board, 498 F.2d 1232 (5th Cir. 1974); counties, Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); and other parochial bodies, Dundee v. Orleans Parish Board of Supervisors of Elections, 434 F.2d 135 (5th Cir. 1970), vacated and remanded on other grounds, 403 U.S. 915, 91 S.Ct. 2231, 29 L.Ed.2d 692 (1971). The one person, one vote principle commands that constituencies include approximately equal numbers of voters, so that the weight of individual votes in larger districts will not be substantially diluted and individuals in those districts will not be deprived of fair and effective representation. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The population equality principle requires a quantitative analysis typically focusing on whether deviations from the average or median population district are impermissibly" }, { "docid": "21855272", "title": "", "text": "GODBOLD, Chief Judge: This is a vote dilution case. It involves challenges to the at-large systems used to elect the Dallas County [Alabama] Commission and the Dallas County Board of Education. Plaintiff sued both the Dallas County Commission and the Board of Education under the Fourteenth and Fifteenth Amendments; the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1971(a)(1) (1976); and § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1983 (West Supp. 1984). The case has a complicated history in the district court because of intervening changes in the law. The government brought suit in 1978, and the ease was originally tried in 1979 and 1980 under the then-prevailing standards of the Fifth Circuit as set forth in Nevett v. Sides, 571 F.2d 209 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980), Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), affd on other grounds sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Later, before the case was decided, the Supreme Court decided Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), a case that “completely changed the mode of assessing the legality of electoral schemes alleged to discriminate against a class of citizens.” Jones v. City of Lubbock, 640 F.2d 777, 777 (5th Cir.1981) (Unit A) (Goldberg, J., concurring), modified 682 F.2d 504 (1982). The government had challenged Ala.Code § 16-8-1 (1975), the section under which the Board of Education was elected, only as applied and not on its face, so the court held the government would not be permitted to present evidence of discriminatory intent in the enactment of section 16-8-1. The court did allow the government to introduce evidence of discriminatory intent in the enactment of 1901 Ala.Acts 328(6), the section under which the County Commission is elected. After the evidence was" }, { "docid": "5495809", "title": "", "text": "S.Ct. 2493, 57 L.Ed.2d 411 (1978); Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978). Cf. Wise v. Lipscomb, 437 U.S. 535, 549, 98 S.Ct. 2493, 2502, 57 L.Ed.2d 411, 422 (1978) (Rehnquist, J., concurring) (four justices express the view that the applicability of minority voting strength dilution doctrine to municipal governments is unsettled). See generally Bonapfél, Minority Challenges to At-Large Elections: The Dilution Problem, 10 Ga.L.Rev. 353 (1976); Note, 87 Harv.L. Rev. 1851 (1974). However, neither the fifteenth nor the fourteenth amendment commands proportional racial or ethnic representation. City of Mobile v. Bolden, 446 U.S. 55, 63 & 75, 100 S.Ct. 1490, 1498 & 1504, 64 L.Ed.2d 47, 56 & 63 (1980). “The Constitution . .. does not demand that each cognizable element of a constituency elect representatives in proportion to its voting strength. White v. Regester [412 U.S. at 765-66, 93 S.Ct. at 2339, 37 L.Ed.2d at 324]. . . . ” Nevett v. Sides, 571 F.2d 209, 216 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). In the absence of an invidious purpose, a state is constitutionally free to draw political boundaries in any manner it chooses. City of Mobile v. Bol-den, 446 U.S. at 61, 100 S.Ct. at 1497, 64 L.Ed.2d at 54. See Gomillion v. Lightfoot, 364 U.S. at 347, 81 S.Ct. at 130, 5 L.Ed.2d at 116 (state’s power to reapportion is absolute absent an unconstitutional condition). In drawing district lines, a legislative body is forbidden to discriminate invidiously, but it is not required to be color blind. “[N]either the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment.” United Jewish Organizations v. Carey, 430 U.S. 144, 161, 97 S.Ct. 996, 1007, 51 L.Ed.2d 229, 243 (1977). Therefore, a legislative body may consider religious, ethnic or racial factors so long as it does not act with invidious purpose or violate one person, one vote precepts. IV. If a legislative body draws the district lines of a voting plan in a manner that discriminates purposely against black voters, the" }, { "docid": "13924539", "title": "", "text": "GODBOLD, Circuit Judge: Members of the Moultrie (Georgia) City Council are elected to staggered terms from the town at-large by a plurality of votes cast. Plaintiffs, black residents of Moul-trie, allege that use of the at-large multi-member district rather than single-member districts unconstitutionally dilutes their votes and the votes of all black citizens in Moultrie, who make up about 35% of the city’s population. The district court held that plaintiffs had failed in their burden of proving dilution and dismissed. We reverse and remand. An appointment plan is not constitutionally infirm merely because it includes multimember or at-large districts. The burden is on the plaintiff to prove that such an electoral scheme unconstitutionally dilutes the votes of minority group members. See White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973); Zimmer v. McKeithen, 485 F.2d 1297, 1304-05 (CA5, 1973) (en banc), aff’d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). In a number of cases this court has explained the content of the plaintiff’s burden of proving dilution of a minority’s votes. We have indicated that four specific areas of inquiry are particularly important: (1) equality of access of minority group members to the political process; (2) whether past discrimination has the present effect of discouraging minority members’ participation in the electoral process; (3) whether the governmental policy underlying the use of multimember districts is tenuous; and (4) the responsiveness of the government body in question to the needs of the minority community. See, e. g., Corder v. Kirksey, 585 F.2d 708, 712 n.8 (CA5,1978); Nevett v. Sides, 571 F.2d 209, 217 (CA5, 1978), petition for cert. filed, 47 U.S.L.W. 3247 (Sept. 22, 1978) (No. 78-492); Kirksey v. Board of Supervisors, 554 F.2d 139, 143 (CA5) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Zimmer, 485 F.2d at 1305. The purpose of inquiry into these areas is to determine whether an electoral system that is unobjectionable in the abstract, nevertheless, on the specific" }, { "docid": "6414614", "title": "", "text": "supra, to the constitutional adequacy of legislatively enacted at-large schemes of election. Thus, we remanded the case again to the district court for further findings on the Commission election plan in light of the Supreme Court’s mandate in Bolden. The district court has complied with our request, and has once again found the at-large plan constitutional. Record, vol. 1 at 225. The case is now in a posture that permits the resolution of plaintiffs’ appeal. II A. Plaintiffs first contend that the district court erred in approving the legislative decision to implement a scheme calling for the at-large election of county commissioners. The plaintiffs argue that the at-large system of election dilutes the votes of blacks, and thus violates the fourteenth and fifteenth amendments to the Constitution. It is clear that an at-large election is not a per se unconstitutional dilution of minority votes. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 142, 91 S.Ct. 1858, 1868, 29 L.Ed.2d 363 (1971). Prior to Bolden, the law of this circuit required “a showing of racially motivated discrimination” for successful prosecution of a claim of constitutionally impermissible vote dilution under the fourteenth or fifteenth amendments. Nevett v. Sides, 571 F.2d 209, 219, 220 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). See also Bolden, supra, 446 U.S. at 99, 100 S.Ct. at 1517 (1980) (White, J., dissenting). That showing, however, could be made through recourse to inference; inference compelled by “such circumstantial and direct evidence of intent as may be available.” Bolden v. Mobile, 571 F.2d 238, 246 (5th Cir. 1978) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977)), reversed, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). A plurality of the Supreme Court has held that this circuit’s previous standards for reaching an inferential determination of discriminatory intent are inadequate. Bolden, supra, 446 U.S. at 72, 100 S.Ct. at 1503 (per Stewart, J.). Our failure, however, appears to have" }, { "docid": "23336511", "title": "", "text": "L.Ed.2d 314. The two lines of cases were theoretically distinct because the latter, or “dilution,” line of cases did not, under earlier interpretations, require a showing of intent, while a racial gerrymander did contemplate a showing of intent. See Zimmer v. McKeithen, 485 F.2d at 1304. Arguably, these two lines of cases are brought respectively under the fifteenth and fourteenth amendments. We do not think that the distinction between “gerrymander” and “dilution” cases has clearly survived later developments in the law. Thus, some courts have treated what were essentially racial gerrymander claims as voting dilution cases. See, e.g., Kirksey v. Board of Supervisors, 554 F.2d 139, 142-43 (5th Cir.) (en banc) (claim that single-member district lines fragmented cohesive black community), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). Furthermore, a dilution claim brought under the constitution must now include proof of discriminatory intent. Rogers v. Lodge, 458 U.S. 613, 616-19, 102 S.Ct. 3272, 3275-77, 73 L.Ed.2d 1012 (1982). If this circuit ever has regarded the fourteenth and fifteenth amendment voting rights causes of action as distinct, that distinction has vanished with the coalescence of the “gerrymander” and “dilution” line of cases. . In Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Court suggested that a plaintiff may demonstrate intent circumstantially through evidence of: (1) the historical background of the decision; (2) the sequence of events leading up to the challenged decision; (3) procedural or substantive departures from normal decision-making; and (4) statements, including legislative or administrative history, reflecting on the purpose of the decision. Id. at 267-68, 97 S.Ct. at 564-65. Undoubtedly, the evidence here sheds some light on the historical background of the Lubbock at-large system. The record, however, tells us nothing about the events or procedures attending the 1917 initiation of that system. We are asked not to judge intent from the “statements” of the legislative body, but rather those of a single member. . We note that the district court may well have believed that no constitutional challenge was before it. The City" }, { "docid": "13924560", "title": "", "text": "asserted by the plaintiffs is not necessary. Brief discussion of one claim of error may be useful to the district court on remand, however. The plaintiffs contend that the district court erroneously held that the election of a single black official forecloses any possible dilution claims, and arguably the last sentence of the district court’s opinion can be so read. Just as the election of disproportionately few minority members does not necessarily mean that the minority vote is diluted, see Zimmer, 485 F.2d at 1305, the election of a single black official does not mean that the black vote is necessarily not diluted. See Kirksey, 554 F.2d at 149 n.21. REVERSED and REMANDED. . Moultrie had a majority vote requirement and run-off elections until 1977 when a three-judge district court enjoined their further use. . We need not for purposes of this opinion draw any distinctions between “at-large” and “multimember” districts. See generally Corder v. Kirksey, 585 F.2d 708, 713 n.11 (CA5, 1978). . The first area of inquiry, equal access to the election process, entails investigation into whether blacks now have an opportunity to fully participate in all phases of the electoral process — nomination, campaigning, and voting. The second area of inquiry, the effects of past discrimination, entails determining whether, although past barriers to participation such as the poll tax or white primary no longer exist, the residual effect of past discrimination is that blacks in fact continue to participate proportionately less than whites (by registering to vote in low numbers, for example). See Kirksey v. Board of Education, 554 F.2d 139, 145 n.13 (CA5) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). . Nevett v. Sides settled in this circuit that invidious discriminatory intent is required in voting dilution cases based on the Fourteenth and Fifteenth amendments. This issue is pending before the Supreme Court. See Bolden v. City of Mobile, 571 F.2d 238 (CA5, 1978), prob. jur. noted, 436 U.S. 902, 98 S.Ct. 2229, 56 L.Ed.2d 399 (1978), scheduled for reargument next term,—U.S.—, 99 S.Ct. 2048, 60 L.Ed.2d 658 (1979)." }, { "docid": "749547", "title": "", "text": "the gerrymander of precinct lines so as to fragment what could otherwise be a cohesive minority voting community____ This dismemberment of the black voting community ... [may have] the ... effect of debilitating the organization and decreasing the participation of black voters.” Kirksey v. Board of Supervisors, 554 F.2d 139, 149 (5th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977) (quoting from Robinson v. Commissioner’s Court, 505 F.2d 674, 679 (5th Cir.1974). See also Carstens v. Lamm, 543 F.Supp. 68, 82 (D.Colo.1982) (three-judge court) {“... a redistricting plan ... should not fracture a natural racial or ethnic community. ...”). Act 20’s jagged line dissects a large concentrated community of black voters residing in Orleans Parish, dispersing that community into the First and Second Congressional Districts. With unerring precision, this line slices through the City’s traditional political subunit, the ward, in a racially selective manner, leaving intact predominantly white wards while carving up those densely populated by blacks. Homogeneous black precincts are separated; white precincts are not. Racial divisions have been preserved at the expense of parish boundaries and respect for the integrity of a natural geographic barrier, the Mississippi River. Discordant communities of interest, those of New Orleans’ old er, urban core and its surrounding suburban neighborhoods, are joined. Drs. Henderson and Engstrom both testified that when coupled with the phenomenon of racially polarized voting, this combination of factors operated to minimize, cancel or dilute black voting strength. In the course of our analysis, we are not unmindful of the legitimate debate among academics and courts about the relative merits of concentrating a minority population within one district or dividing that population into two or more districts so that it exerts a substantial influence in each. We are convinced that in the present case, the division of the black population was not designed to enhance the effectiveness of the black electorate, nor is it likely to occasion such. Application of amended § 2’s “results” test to the aggregate of the facts adduced at trial, including Louisiana’s history of discrimination and the impact of that history" }, { "docid": "23336510", "title": "", "text": "of the fifteenth amendment. In all other respects, the judgment is AFFIRMED. Appellant will bear the costs. . As mentioned hereafter, Congress has not even purported to “overrule” Bolden in the sense of substituting a different interpretation of the substantive meaning of the fourteenth and fifteenth amendments. Nevertheless, Congress, pursuant to its authority under section 5 of the fourteenth amendment and section 2 of the fifteenth amendment, has legislatively proscribed political systems that the constitution might suffer. See section V.A. 2., infra. . Some courts have identified two separate theories under which a plaintiff might show that a redistricting plan discriminates invidiously. E.g., Zimmer v. McKeithen, 485 F.2d 1297, at 1304 (5th Cir.1974). According to these cases, a plaintiff may show either a “racially motivated gerrymander” — Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) is the paradigmatic case — or an apportionment scheme that operates to cancel out the voting strength of a minority group. E.g., White v. Regester, 412 U.S. 755, at 766-70, 93 S.Ct. 2332, 2339-41, 37 L.Ed.2d 314. The two lines of cases were theoretically distinct because the latter, or “dilution,” line of cases did not, under earlier interpretations, require a showing of intent, while a racial gerrymander did contemplate a showing of intent. See Zimmer v. McKeithen, 485 F.2d at 1304. Arguably, these two lines of cases are brought respectively under the fifteenth and fourteenth amendments. We do not think that the distinction between “gerrymander” and “dilution” cases has clearly survived later developments in the law. Thus, some courts have treated what were essentially racial gerrymander claims as voting dilution cases. See, e.g., Kirksey v. Board of Supervisors, 554 F.2d 139, 142-43 (5th Cir.) (en banc) (claim that single-member district lines fragmented cohesive black community), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). Furthermore, a dilution claim brought under the constitution must now include proof of discriminatory intent. Rogers v. Lodge, 458 U.S. 613, 616-19, 102 S.Ct. 3272, 3275-77, 73 L.Ed.2d 1012 (1982). If this circuit ever has regarded the fourteenth and fifteenth amendment voting rights" }, { "docid": "18845945", "title": "", "text": "Court has already found that the county commission has exhibited extensive responsiveness to the county’s black citizens. The Court has carefully considered the totality of the circumstances respecting the openness of the political processes leading or nomination or election in Dallas County and concludes that, considering all of the factors in the aggregate as they are established by the evidence in the record, the political processes leading to nomination and election in Dallas County are equally open to participation by black citizens of the county and that the Plaintiff has failed to meet its burden of proof to establish that the at-large election of members of the county governing body of Dallas County, Alabama is violative of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended, or 42 U.S.C. § 1971(a)(1). B. Constitutional Claims The constitutional claims under both the Fourteenth and the Fifteenth Amendments fare no better than the statutory claims. At the time Plaintiff filed its complaint, the trial of dilution cases in the Fifth Circuit was governed by the pronouncements of the Court of Appeals in the leading cases of Zimmer v. McKeithen, 485 F.2d 1297 (5th C.C.A., en banc, 1973), aff’d (on other grounds) 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) and Kirksey v. Board of Supervisors, 554 F.2d 139 (5th C.C.A., en banc, 1977), cert. den. 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977), aided by the more recent pronouncements of the Supreme Court in Washington v. Davis, supra, and Village of Arlington Heights v. Metropolitan Housing Development Corp., supra. During the pendency of this action, the Supreme Court issued its decision in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The Bolden case has been followed by several Fifth Circuit cases, including Lodge v. Buxton, supra; Cross v. Baxter, 639 F.2d 1383 (5th C.C.A., 1981); Corder v. Kirksey, 639 F.2d 1191 (5th C.C.A., 1981); Kirksey v. City of Jackson, Miss., supra; Thomasville Branch of NAACP v. Thomas City, Georgia, 639 F.2d 1384 (5th C.C.A., 1981); Jones v. City" }, { "docid": "749572", "title": "", "text": "claim, see, e.g., Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.), aff’d mem. — U.S. —, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982); Washington v. Finlay, 664 F.2d 913 (4th Cir.1981); Lodge v. Buxton, 639 F.2d 1358 (5th Cir.1981), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), the Supreme Court itself tallies a minority of three. Rogers v. Lodge, 458 U.S. 613, 619 n. 6, 102 S.Ct. 3272, 3276 n. 6, 73 L.Ed.2d 1012 (1982) (“Three Justices [Justice Stevens, concurring, and Justices White and Marshall, dissenting] disagreed with the plurality's basis for putting aside the Fifteenth Amendment.”). The Rogers court expressed no opinion on this issue, leaving undisturbed the plurality’s decision with respect to the applicability of the Fifteenth Amendment and the original version of § 2 to dilution claims. See Campbell v. Gadsen County School Board; McMillan v. Escambia County. Nor, as discussed infra, need we consider the issue. . Dilution jurisprudence has evolved primarily in the context of constitutional challenges to state at-large or multimember districts. Though the Supreme Court has not directly addressed the issue, this circuit has recognized that the standards for decision developed in the multimember or at-large districting cases govern the adjudication of claims involving the constitutionality of single-member districts. Nevett v. Sides, 571 F.2d 209 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980); Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974). See R. Dixon, Democratic Representation: Reapportionment in Law and Politics 484 (1968). With regard to the applicability of the dilution rationale to congressional districting cases, we believe the better view is that irrespective of whether a state legislative or congressional districting plan is the subject of dispute, “ 'we are required to determine the same question, whether or not there has been an unconstitutional manipulation of the electoral district boundaries so as to minimize or dilute the voting strength of a" } ]

[ { "docid": "14061137", "title": "", "text": "B.R. 888 (Bankr.S.D.Ohio 1983). The filing of two simultaneous petitions is contrary to the obvious contemplated function of the Bankruptcy Code to resolve debtors’ financial affairs by administration of a debtor’s property as a single estate under a single Chapter within the Code. 11 U.S.C. §§ 103, 301, 302 and 303. The Bankruptcy Code provides different discharge remedies in different Chapters, and such remedies are intended to be exclusive for each estate. 11 U.S.C. §§ 103, 301, 523, 727 and 1328. Id. at 894. The Debtors in this case cite In re Tauscher, 26 B.R. 99 (Bankr.E.D.Wis.1982) for the proposition that after a Chapter 7 discharge has been entered but before the closing of the case, a debtor may file a Chapter 13 petition. In Tauscher, the bankruptcy court reasoned that since the two simultaneously pending cases presented no conflict in the administration of assets, there is no legal or practical reason to bar the debtor from maintaining the cases simultaneously. The Court reasoned after the Chapter 7 discharge, the debtor is no longer involved in the case. Further, the Chapter 7 bankruptcy estate is totally distinct and separate from the Chapter 13 estate. See also, In re Bumpass, 28 B.R. 597 (Bankr.S.D.N.Y.1983). This Court is of the opinion a debtor may not maintain a bankruptcy case and obtain a discharge while another bankrupt cy case is pending. See, Appleton v. Belmore (In re Belmore), 68 B.R. 889 (Bankr. M.D.Pa.1987). If these debtors are permitted to maintain their second petition while a prior case is pending, an easy avenue for abuse of the bankruptcy system would be sanctioned. It is conceivable that debtors could undertake numerous simultaneous filings when events in one case take a turn to their disliking. There is simply no rule of law which would allow debtors to have two cases pending at the same time. In re Smith, 85 B.R. 872 (Bankr.W.D.Okla. 1988). Since the Chapter 7 case remains open, this Chapter 13 case must therefore be dismissed. It is possible the Debtors may maintain a bankruptcy case after the pending Chapter 7 case is closed." } ]

[ { "docid": "3900268", "title": "", "text": "U.S.C. § 109(e). Similarly, a reading of Fed.R.Bankr.P. 1015(a) does not reveal any procedural bar to simultaneous filings. Fed.R.Bankr.P. 1015(a) provides: (a) Cases Involving Same Debtor. If two or more petitions are pending in the same court by or against the same debt- or, the court may order consolidation of the cases. Fed.Rule Bankr.P. 1015(a). Rule 1015(a) refers to cases involving the same debtor and is typically applicable when the same debtor is named in both voluntary and involuntary petitions. In re Kosenka, 104 B.R. at 43. However, Rule 1015(a) does not explicitly address the propriety of the same debtor filing two or more petitions under different chapters. Id. at 42-43. Additionally, the language of the Rule 1015(a) is discretionary so that the Court “may” order consolidation of the cases. Id. Some courts addressing the simultaneous case issue have adopted a strict approach ruling that only one case may be pending at the same time and that a debtor may not be the subject of simultaneous cases. See In re Fulks, 93 B.R. 274 (Bankr.M.D.Fla.1988) (debtor may not simultaneously maintain Chapter 7 and a Chapter 13 cases notwithstanding a discharge); In re Smith, 85 B.R. 872 (Bankr.W.D.Okl.1988) (debtors were precluded from filing second petition after discharge was entered but prior to the closure of debtor’s first case). Those courts that favor a per se bar against simultaneous filings consistently rely on the Supreme Court’s decision in Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), in which the Court held that under the old Act, the pendency of the first application for discharge precluded debtor from seeking a discharge in a second filing with respect to the same debts. Id. See In re Fulks, 93 B.R. at 275; In re Smith, 85 B.R. at 874. However, other decisions have interpreted Freshman in a more limited fashion. See In re Grimes, 117 B.R. 531 (Bankr.9th Cir.1990); In re Kosenka, supra; In re Strause, 97 B.R. 22 (Bankr.S.D.Cal.1989) For example, the bankruptcy court in Strause pointed out that Freshman does not stand for the proposition that a debtor" }, { "docid": "16169866", "title": "", "text": "October 8, 2003. On June 24, 2004, Debtor filed a Chapter 13 petition (case No. 04-57903). The Debtor’s Chapter 13 Plan proposes to fund the Plan with monthly payments of $3,155.00. The source of the payments is Debtor’s wages. That case is still pending and is the subject of the Chapter 7 Trustee’s present Motion to Dismiss. The Chapter 7 Trustee asserts that Debtor’s Chapter 13 estate is attempting to administer assets which belong to the Chapter 7 estate-assets that “were either not declared exempt or are still being administered by the trustee, and have yet to be abandoned by a closing order or a motion for abandonment.” (Trustee’s Motion ¶ 2). No other party has objected to confirmation of the Debtor’s Chapter 13 Plan. Analysis The Bankruptcy Code does not expressly prohibit a Chapter 7 debtor from simultaneously seeking relief under Chapter 13. Given the lack of explicit statutory guidance, courts have split on the issue. While a majority of courts have adopted a per se rule prohibiting a debtor from having more than one bankruptcy case open at any time (see, e.g. In re Lord, 295 B.R. 16 (Bankr.E.D.N.Y.2003)), other courts permit a debtor to file a Chapter 13 petition after the Chapter 7 discharge has been entered, but before the Chapter 7 case is officially closed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993). See also, In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Tauscher, 26 B.R. 99 (Bankr.E.D.Wis., 1982); In re Robinson, 18 B.R. 891 (Bankr.D.Conn.1982); In re Saylors, 869 F.2d 1434 (11th Cir.1989). The courts which follow the minority rule focus on the rehabilitative purpose behind Chapter 13 filings and reason that “administrative hurdles, including the trustee’s delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13.” Id., 156 B.R. at 356. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtors good faith." }, { "docid": "19741236", "title": "", "text": "re Berg), 45 B.R. 899, 903 (9th Cir. BAP 1984) (“[Property cannot be an assets of both estates simultaneously.”). In In re Parson the U.S. Bankruptcy Court for the Eastern District of Virginia prohibited the reopening of a chapter 7 proceeding because the debtors’ property could not be an asset of both the reopened chapter 7 estate and the debtors’ current chapter 13 estate. No. 01-73786-SCS, 2007 WL 3306678, at *11 (Bankr.E.D.Va.2007). The courts in the minority have held that the single estate rule does not apply when a second bankruptcy filing was made after a discharge was granted in the first. Grimes v. United States (In re Grimes), 117 B.R. 531, 535-36 (9th Cir. BAP 1990) (“These cases are distinguishable in that the [single estate rule] prohibits a debtor from filing a Chapter 13 petition before the receipt of the Chapter 7 discharge.”). The Second Circuit, however, observed: Despite ... courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for [bankruptcy] relief and then files for protection under chapter 13 before receiving a discharge in the original ... case, that the chapter 13 case is a nullity [because of the single estate rule.] Turner, 207 B.R. at 378 (emphasis in original). This Court therefore finds that application of the single estate rule is consistent with the Atkins decision and does not provide an additional ground for which a debtor’s concurrent bankruptcy case may be dismissed. III. Bad Faith in Filing. A debtor’s bad faith in filing constitutes “cause” for dismissal under section 1307(c). Kestell v. Kestell (In re Kestell), 99 F.3d 146, 148 (4th Cir.1996). When deciding whether to dismiss a debtor’s petition for bad faith, bankruptcy courts “employ! ] standards of good faith similar to those used in determining whether a chapter 13 plan has been proposed in good faith.” 8 Collier on Bankruptcy ¶ 1307.04[10] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.). The Fourth Circuit in Neufeld v. Freeman, 794 F.2d 149, 152 (4th Cir.1986), evaluated whether a debtor exhibited bad faith" }, { "docid": "3900267", "title": "", "text": "this Court shall consider decisions prior to Johnson to decide the propriety of concurrent Chapter 7 and Chapter 13 cases. There is no express prohibition in the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure barring a Chapter 7 debtor from simultaneously seeking Chapter 13 relief. In re Saylors, 869 F.2d 1434, 1436-37 (11th Cir.1989); In re Standfield, 152 B.R. at 538; In re Kosenka, 104 B.R. 40, 42-43 (Bankr.N.D.Ind.1989). For example, Section 109(e) simply states the eligibility requirements for Chapter 13: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). Similarly, a reading of Fed.R.Bankr.P. 1015(a) does not reveal any procedural bar to simultaneous filings. Fed.R.Bankr.P. 1015(a) provides: (a) Cases Involving Same Debtor. If two or more petitions are pending in the same court by or against the same debt- or, the court may order consolidation of the cases. Fed.Rule Bankr.P. 1015(a). Rule 1015(a) refers to cases involving the same debtor and is typically applicable when the same debtor is named in both voluntary and involuntary petitions. In re Kosenka, 104 B.R. at 43. However, Rule 1015(a) does not explicitly address the propriety of the same debtor filing two or more petitions under different chapters. Id. at 42-43. Additionally, the language of the Rule 1015(a) is discretionary so that the Court “may” order consolidation of the cases. Id. Some courts addressing the simultaneous case issue have adopted a strict approach ruling that only one case may be pending at the same time and that a debtor may not be the subject of simultaneous cases. See In re Fulks, 93 B.R. 274 (Bankr.M.D.Fla.1988)" }, { "docid": "19741231", "title": "", "text": "denies a discharge to a debtor where another proceeding in which he is a debtor is pending. Further, Bank ruptcy Rule 1015(a) appears to contemplate that multiple cases may be pending against the same debtor. Neither the United States Supreme Court nor the Court of Appeals for the Fourth Circuit has considered the issue presented in this case. However, there is existing case law that analyzes whether a debtor may maintain simultaneous cases under chapter 13 of the Bankruptcy Code. Such case law identifies three potential grounds for dismissal: the Supreme Court’s decision in Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the single estate rule, and bad faith in filing. I. The Atkins Decision. The majority of courts hold that maintaining simultaneous bankruptcy cases is per se barred. See, e.g., In re Sidebottom, 430 F.3d 893, 897-98 (7th Cir.2005); Turner v. Citizens Nat’l Bank of Hammond (In re Turner), 207 B.R. 373, 378-79 (2d Cir. BAP 1997); In re Gateway North Estates, Inc., 39 F.3d 1181 (table), 1994 WL 610167, at *2 (6th Cir.1994). In general, the majority cites the Supreme Court’s decision in Atkins for the proposition that a debtor may never maintain simultaneous cases under the Bankruptcy Code. E.g., Sidebottom, 430 F.3d at 897. A growing minority holds that there is no per se prohibition of simultaneous filings. See, e.g., Davis v. Mather (In re Davis), 239 B.R. 573, 575 n. 2 (10th Cir. BAP 1999); Grimes v. United States (In re Grimes), 117 B.R. 531, 533-36 (9th Cir. BAP 1990); Jim Walter Homes, Inc. v. Saylors (In re Saylors), 869 F.2d 1434, 1437-38 (11th Cir.1989). In general, the minority takes the position that “a debtor who has been granted a discharge under one chapter under Title 11 may file a subsequent petition under another chapter even though the first case remains open.” Grimes, 117 B.R. at 536. They interpret Atkins “as stating that two cases which seek to discharge the same debt cannot be pending simultaneously.” Transamerica Credit Corp. v. Bullock (In re Bullock), 206 B.R. 389, 393 (Bankr.E.D.Va.1997) (holding that" }, { "docid": "6753896", "title": "", "text": "illustrates that the Turners almost certainly cannot have been granted a discharge in their chapter 7 case at the time they sought chapter 13 relief. Since the Supreme Court issued its decision in Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991), it has been increasingly common for debtors who have been in chapter 7 to seek chapter 13 protection as a means of dealing with mortgage liens or nondischargeable claims that survive the chapter 7 discharge. In Johnson, The Supreme Court found that “Congress did not intend categorically to foreclose the benefits of chapter 13 reorganization to a debtor who has previously filed for chapter 7 relief.” Id. at 87, 111 S.Ct. at 2156. The Court did not address whether a debtor may maintain a chapter 13 case during the pendency of a chapter 7 ease. Such a coupling of these two cases has been described as a “simultaneous chapter 20” as opposed to a “serial or sequential chapter 20” in which the chapter 13 case is commenced after closure of the chapter 7 ease. In re Hodurski, 156 B.R. 353, 354 (Bankr.D.Mass.1993). There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In re Jones, 117 B.R. 415, 421 (Bankr.N.D.Ind.1990). In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984) (citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925)). The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. Norwalk Savings Society v. Peia (In re Peia), 204 B.R. 310, 314 (Bankr.D.Conn.1996). A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a" }, { "docid": "18616451", "title": "", "text": "MEMORANDUM AND DECISION EDWARD D. HAYES, Bankruptcy Judge. In this case, a Chapter 12 petition was filed after a Chapter 7 discharge was granted but before the Chapter 7 case was closed. Melvin J., Jr. and Joan F. Bodine, the Debtors herein, now request that their Chapter 12 Plan be confirmed. No objection has been made to the Plan being confirmed. The facts are as follows. The Bodines filed a Chapter 11 petition on February 11, 1986. On March 8, 1988, the Chapter 11 was converted to a Chapter 7. They received their discharge on January 4, 1989. The Bodines filed a Chapter 12 petition on July 26, 1989. However, their Chapter 7 case was still pending due to a dispute as to the Chapter 7 estate’s interest in certain crop proceeds. On the date of the confirmation hearing, these proceeds amounting to $8,157.55 plus interest were still in the possession of the Bodines. However, the Bodines, in their brief assert that the money has been turned over to the Chapter 7 trustee. The original Chapter 11 filing showed secured debts amount to $1,469,823 and unsecured debts amounting to $61,000. The Chapter 12 filing shows secured debts amounting to $862,000 and listed the Chapter 7 trustee as the only unsecured debt. This Court has previously held that simultaneous petitions in bankruptcy are not allowed. In re Heywood, 39 B.R. 910, 911 (Bkrtcy.W.D.N.Y.1984), citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925). The holding in Heywood, supra, was premised on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single Chapter of the Code. Associates Financial Services Corporation v. Cowen, 29 B.R. 888 (Bkrtcy.S.D.Ohio 1983). The majority of the courts which has addressed the issue of simultaneous filings agree with this Court’s holding in Heywood, supra. See In re Jackson, 108 B.R. 251 (Bkrtcy.E.D.Cal.1989); In re Fulks, 93 B.R. 274 (Bkrtcy.M.D.Fla.1988); In re Belmore, 68 B.R. 889 (Bkrtcy.M.D.Pa.1987); Prudential Insurance Co. of America v. Colony Square Co., 40 B.R." }, { "docid": "10696714", "title": "", "text": "the Chapter 7 Trustee’s resolution of the personal injury action and submission of his Final Report. Discussion The Chapter 13 Trustee urges this Court to adopt the “per se” rule barring simultaneous bankruptcy cases, which is followed by the majority of the courts which have considered this issue, and to dismiss the Chapter 13 case currently pending before this Court. The debtor, however, contends that his Chapter 13 case was filed in good faith, after the discharge of his unsecured debt in the Chapter 7 case, in order to permit him to cure and reinstate his home mortgage, pursuant to § 1322(b)(5) of the Bankruptcy Code. Although there is no statutory prohibition against maintaining two bankruptcy cases at the same time under separate chapters of the Bankruptcy Code, there is likewise no statutory permission to do so. The Trustee contends that some courts have misinterpreted Bankruptcy Rule 1015, which provides for consolidation of “two or more petitions pending in the same court by or against the same debtor,” and for consolidation or joint administration of cases involving related debtors, as implying that simultaneous filings by the same debtor under different Chapters of the Code are permissible. This Court agrees with the Trustee that no such inference may be drawn from Bankruptcy Rule 1015, which, as the Advisory Committee Note states, is applicable when the debtor is named in both voluntary and involuntary petitions; when related debtors have filed petitions which should be consolidated or jointly administered; when two or more involuntary petitions are filed against the same debtor, or in similar circumstances. Neither Bankruptcy Rule 1015, nor any provision of the Bankruptcy Code addresses the propriety of simultaneous cases under different Chapters with regard to the same debtor, nor does the absence of such a provision imply that Congress permitted such cases. Lacking statutory guidance on this issue, the courts have split in two camps. The majority of courts to address this issue have ruled that only one bankruptcy case may be pending at a time and for a given debtor. E.g., In re Fulks, 93 B.R. 274, 275 (Bankr.M.D.Fla.1988);" }, { "docid": "3900269", "title": "", "text": "(debtor may not simultaneously maintain Chapter 7 and a Chapter 13 cases notwithstanding a discharge); In re Smith, 85 B.R. 872 (Bankr.W.D.Okl.1988) (debtors were precluded from filing second petition after discharge was entered but prior to the closure of debtor’s first case). Those courts that favor a per se bar against simultaneous filings consistently rely on the Supreme Court’s decision in Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), in which the Court held that under the old Act, the pendency of the first application for discharge precluded debtor from seeking a discharge in a second filing with respect to the same debts. Id. See In re Fulks, 93 B.R. at 275; In re Smith, 85 B.R. at 874. However, other decisions have interpreted Freshman in a more limited fashion. See In re Grimes, 117 B.R. 531 (Bankr.9th Cir.1990); In re Kosenka, supra; In re Strause, 97 B.R. 22 (Bankr.S.D.Cal.1989) For example, the bankruptcy court in Strause pointed out that Freshman does not stand for the proposition that a debtor is technically barred from simultaneously maintaining two cases under different chapters of the Bankruptcy Code. 97 B.R. at 26. The Court in Strause noted that although the debtor in Freshman was denied a discharge as to old debts, he was allowed to discharge new debts scheduled in the second petition, despite the pendency of the first proceeding. Id. Therefore, Freshman merely holds that two applications for discharge of the same debts cannot be pending concurrently. See Id. Another approach to the simultaneous filings issue suggests that a debtor may file a Chapter 13 petition once the Chapter 7 discharge has entered, but before the Chapter 7 case is technically closed. See In re Saylors, supra; In re Strause, supra; In re Kosenka, supra. Courts adopting this policy agree with those utilizing the strict approach to the extent that a debtor is prohibited from filing a Chapter 13 petition before the entry of a discharge in a pending Chapter 7 case. See In re Kosenka, 104 B.R. at 43. The rationale for this approach is that" }, { "docid": "19741234", "title": "", "text": "debts.” Id. at 122, 46 S.Ct. at 41. The Court analogized this situation to the common law plea of “prior suit pending ... [where] the law will not tolerate two suits at the same time for the same cause.” Id. at 123, 46 S.Ct. at 42. The filing of the second application by the debtor with knowledge of the pendency of the first “was an imposition upon and an abuse of the process of the court.” Id. at 124, 46 S.Ct. at 42. In the case at bar, Mr. Brown scheduled his debt to Chase in both his Confirmed Case and Second Case. Although a plan was confirmed in the Confirmed Case on January 23, 2008, the debtor never completed payments under the plan and defaulted on his plan obligations. A discharge issues under chapter 13 “as soon as practicable after completion by the debtor of all payments under the [confirmed] plan.” 11 U.S.C. § 1328. Mr. Brown therefore never obtained a discharge in his Confirmed Case. Thus, this Court need not determine which view of Atkins is more persuasive. Even if Atkins only prohibits concurrent bankruptcy cases “which seek to discharge the same debt,” Mr. Brown was precluded from filing a subsequent chapter 13 petition with respect to any debt included but not discharged in his Confirmed Case. Bullock, 206 B.R. at 393 (emphasis in original). II. The Single Estate Rule. Some courts holding to the majority’s per se view have found that the “single estate rule” bars simultaneous bankruptcy filings. This rule prohibits concurrent eases on the basis that the “filing of simultaneous petitions is ‘contrary to the obvious contemplated function of the Bankruptcy Code to resolve a debtor’s financial affairs by administration of a debtor’s property as a single estate under a single chapter within the code.’ ” Turner v. Citi zens Nat’l Bank of Hammond (In re Turner), 207 B.R. 373, 378 (2d Cir. BAP 1997) (quoting In re Kosenko, 104 B.R. 40, 46 (Bankr.N.D.Ind.1989) (quoting Assocs. Fin. Servs. Corp. v. Cowen (In re Cowen), 29 B.R. 888, 894-95 (Bankr.S.D.Ohio 1983))). Accord Bateman v. Grover (In" }, { "docid": "1839044", "title": "", "text": "109(e). However, Debtors qualify in the above-captioned Chapter 13 case due to the discharge of significant debt in the Chapter 7 case. For those reasons, Debtors assert that the filing of simultaneous cases is warranted. This Court has previously dismissed a second and simultaneously filed Chapter 13 case which was filed to delay creditors who had previously been granted relief from the automatic stay in a prior Chapter 13. In re Garner, C/A No. 02-2058, slip op. (March 11, 2002). This Court has also found that the conversion of a case to Chapter 13 after a discharge of the same debts incurred in the case as a Chapter 7 case was not permitted absent debtor’s agreement to revocation of the discharge. In re Fisher, C/A No. 00-5354, slip. op. (January 30, 2002). As noted by the court in In re Lord, 295 B.R. 16 (Bankr.E.D.N.Y.2003), a significant number of courts have ruled that only one bankruptcy case may be pending at a time and for a given debtor. See, e.g., In re Turner, 207 B.R. 373, 378 (2d Cir. BAP 1997); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Fulks, 93 B.R. 274, 275 (Bankr.M.D.Fla.1988); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okla.1988); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). The court in In re Lord further recognized that a minority of courts have refused to adopt a per se prohibition, and have permitted “simultaneous Chapter 7 and 13 petitions [that] relate to different assets and different debts.” 295 B.R. at 18-19. The filing of simultaneous bankruptcy cases is not a new tactic and has been addressed by the United States Supreme Court on at least two occasions. In Freshman v. Atkins, the Court addressed two simultaneously filed cases, a chapter 7 case in which discharge was denied followed by a chapter 13 case, and indicated that the “pendency of the first application precluded a consideration of the second in respect of the same debts.” 269 U.S. 121, 122, 46 S.Ct. 41, 70 L.Ed. 193 (1925). The United States Supreme Court’s decision in Atkins has been cited" }, { "docid": "18616452", "title": "", "text": "Chapter 11 filing showed secured debts amount to $1,469,823 and unsecured debts amounting to $61,000. The Chapter 12 filing shows secured debts amounting to $862,000 and listed the Chapter 7 trustee as the only unsecured debt. This Court has previously held that simultaneous petitions in bankruptcy are not allowed. In re Heywood, 39 B.R. 910, 911 (Bkrtcy.W.D.N.Y.1984), citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925). The holding in Heywood, supra, was premised on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single Chapter of the Code. Associates Financial Services Corporation v. Cowen, 29 B.R. 888 (Bkrtcy.S.D.Ohio 1983). The majority of the courts which has addressed the issue of simultaneous filings agree with this Court’s holding in Heywood, supra. See In re Jackson, 108 B.R. 251 (Bkrtcy.E.D.Cal.1989); In re Fulks, 93 B.R. 274 (Bkrtcy.M.D.Fla.1988); In re Belmore, 68 B.R. 889 (Bkrtcy.M.D.Pa.1987); Prudential Insurance Co. of America v. Colony Square Co., 40 B.R. 603 (Bkrtcy.N.D.Ga.1984), aff'd, 62 B.R. 48 (N.D.Ga.1985); and In re Stahl, Asano, Shigetomi & Associates, 7 B.R. 181 (Bkrtcy.D.Hawaii 1980). The Bodines assert that the majority view is based on a misreading of Freshman, 269 U.S. 121, 46 S.Ct. 41. They contend Freshman does not stand for the proposition that simultaneous filings are not permitted. Instead, they argue Freshman stands for the proposition that two applications for discharge of the same debts cannot be pending at the same time. The Bodines urge the Court to adopt the emerging minority view which holds that once a discharge has been granted in a preceding Chapter 7 case, the debtor may file a second petition to reorganize the remaining debts which have not been discharged. See In re Kosenka, 104 B.R. 40 (Bkrtcy.N.D.Ind.1989) and cases cited therein. This Court declines to adopt the emerging minority view. Further, this Court agrees with the Court’s statement in In re Smith, 85 B.R. 872 (Bkrtcy.W.D.Okl.1988), that to permit debtors to maintain their second petition while the first is pending is an" }, { "docid": "253565", "title": "", "text": "on the property located in Uniondale, New York. When Barnes-filed her Chapter 13 bankruptcy, an automatic stay was placed on all transactions regarding the Chapter 7 estate including the foreclosure proceeding on the property in Uniondale, New York. As a result, the Trustee claims that the Chapter 13 filing was made in bad faith as it was intended for the sole purpose of stalling the foreclosure proceeding and preserving the real property owned by the estate and located in Uniondale, New York. Prior to the decision of the United States Bankruptcy Appellate Panel for the Second Circuit’s decision in In re Turner, 207 B.R. 373 (2nd Cir. BAP 1997), a decision filed after the briefs had been submitted in this case, courts were split as to the issue of whether Chapter 7 and Chapter 13 filings may exist simultaneously for the same debt- or. The Court in In re Turner analyzed both the majority rule, which prohibited simultaneous filings of Chapter 7 and Chapter 13 bankruptcies; and the minority rule, that permitted such filings. The Bankruptcy Appellate Panel described the divergence in opinions as follows: There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a chapter 7, receive his or her discharge, and then file a second petition under chapter 13 to reorganize the debts which have not been discharged although certain administrative acts of the chapter seven case such as the trustee’s filing of a final report have not already been completed." }, { "docid": "4728629", "title": "", "text": "894-95 (Bkrtcy.S.D.Ohio 1983), is representative of some of the decisions within the majority camp that apply what may be referred to as the “single estate rule.” In Cowen, the debtors filed a Chapter 7 petition but for reasons left unexplained, did not obtain a Chapter 7 discharge until after the debtors had filed a second petition under Chapter 13. In what the Cowen Court denominated as a “de facto” Chapter 7 discharge prior to the Chapter 13 petition, the Court declared the Chapter 13 petition a “nullity,” because: 1). “a. debtor may not maintain two simultaneous and separate bankruptcy proceedings;” 2). a debtor “possesses only one estate” and the filing of two simultaneous petitions “is contrary to the obvious contemplated function of the Bankruptcy Code to resolve debtor’s financial affairs by administration of a debtor’s property as a single estate under a single Chapter within the Code_” Id., 29 B.R. at 894. It is this second ground which we denominate a “single estate rule,” i.e., where the debtor has yet to receive its Chapter 7- discharge and has filed a Chapter 13 petition. Additionally, the Cowen Court remarked that even if multiple filings were permitted, it could not be done “until at the earliest, after the granting of the discharge in the prior Chapter 7 proceeding.” Id., 29 B.R. at 395. The Cowen Court discounted the latter circumstance if its essence is only to restructure debt that survived the earlier Chapter 7 proceeding, because such filings have been found to lack good faith. Some Courts will dismiss a debtor’s Chapter 13 case when there is a Chapter 7 case pending, notwithstanding an entry of a discharge in the Chapter 7 case, on grounds that either the Chapter 13 petition was not filed in good faith or that such procedural machination prevented a finding of good faith during the confirmation hearing on debtor’s Chapter 13 plan. See, In re Heywood, 39 B.R. 910, 911 (Bkrtcy.W.D.N.Y.1984) (after citing Freshman for the proposition that simultaneous petitions in bankruptcy are not allowed, the Court dismissed debtors’ Chapter 13 petition filed five months after the" }, { "docid": "1839045", "title": "", "text": "373, 378 (2d Cir. BAP 1997); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Fulks, 93 B.R. 274, 275 (Bankr.M.D.Fla.1988); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okla.1988); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). The court in In re Lord further recognized that a minority of courts have refused to adopt a per se prohibition, and have permitted “simultaneous Chapter 7 and 13 petitions [that] relate to different assets and different debts.” 295 B.R. at 18-19. The filing of simultaneous bankruptcy cases is not a new tactic and has been addressed by the United States Supreme Court on at least two occasions. In Freshman v. Atkins, the Court addressed two simultaneously filed cases, a chapter 7 case in which discharge was denied followed by a chapter 13 case, and indicated that the “pendency of the first application precluded a consideration of the second in respect of the same debts.” 269 U.S. 121, 122, 46 S.Ct. 41, 70 L.Ed. 193 (1925). The United States Supreme Court’s decision in Atkins has been cited for the proposition that two cases which seek to discharge the same debt cannot be pending simultaneously. See Transamerica Credit Corp. v. Bullock (In re Bullock), 206 B.R. 389, 392-93 (Bankr.E.D.Va.1997). A number of other courts have recognized this principle. See In re Teal, 297 B.R. 922, 925 (Bankr.S.D.Ga.2003); In re Taylor, 261 B.R. 877, 887-88 (Bankr.E.D.Va.2001). Further, in Johnson v. Home State Bank, the United States Supreme Court refused to adopt a per se rule prohibiting “serial chapter 20” filings; that is, a chapter 13 case to be filed after a chapter 7 discharge was obtained where the chapter 13 case addressed mortgage liens or non-dischargeable claims that survive the chapter 7 discharge. 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). The Court determined that the permissibility of such cases should depend upon the circumstances of the cases and a “good faith” determination. However, the Court in Johnson did not recognize “simultaneous chapter 20 filings” which seek to discharge the same debt. Id. Policy considerations also require that such “simultaneous chapter 20" }, { "docid": "10696716", "title": "", "text": "In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okl.1988); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). This view, adopted by the Bankruptcy Appellate Panel of the Second Circuit in In re Turner, 207 B.R. 373, 378 (2d Cir. BAP 1997), holds that “a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code.” Under this view, a debtor is barred from filing a Chapter 13 petition before the Chapter 7 case is closed, even if the debtor has already received a discharge in the Chapter 7 case. A minority of courts, however, have declined to adopt a per se rule against such simultaneous filings and have permitted a debtor to file a second petition under Chapter 13 to reorganize the debts that have survived the Chapter 7 discharge, before the closing of the Chapter 7 case, provided the debtor had already received the Chapter 7 discharge. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Saylors, 869 F.2d 1434 (11th Cir.1989); Helbock v. Strause (In re Strause), 97 B.R. 22 (Bankr.S.D.Cal.1989). The minority is concerned that although a Chapter 7 trustee has the duty to “close the estate as expeditiously as is compatible with the best interests of parties in interest” pursuant to Section 704(1) of the Bankruptcy Code, the debtor should not be subject to completion of “administrative hurdles” by the Chapter 7 Trustee, such as the filing of the final report, which are “beyond the debtor’s control”, before being able to file the Chapter 13 petition and propose a plan. In re Hodurski, 156 B.R. 353, 356 (Bankr.D.Mass.1993) (citing In re Saylors, 869 F.2d at 1438). Thus, where simultaneous Chapter 7 and Chapter 13 petitions relate to different assets and different debts, the minority finds that a court may properly entertain simultaneous cases for the same debtor. See In re Strause, 97 B.R. at 27-30; In re Kosenka, 104 B.R. at 51; In re Tauscher," }, { "docid": "6753897", "title": "", "text": "after closure of the chapter 7 ease. In re Hodurski, 156 B.R. 353, 354 (Bankr.D.Mass.1993). There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In re Jones, 117 B.R. 415, 421 (Bankr.N.D.Ind.1990). In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984) (citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925)). The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. Norwalk Savings Society v. Peia (In re Peia), 204 B.R. 310, 314 (Bankr.D.Conn.1996). A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a chapter 7, receive his or her discharge, and then file a second petition under chapter 13 to reorganize the debts which have not been discharged although certain administrative acts of the chapter 7 case such as the trustee’s filing of a final report have not already been completed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); Frenz, 142 B.R. at 614 n. 2 (citing cases). While the majority view may be viewed as an absolutist position, the minority view does run the risk of making available “an easy avenue for abuse of the bankruptcy system” that would allow debtors to file multiple cases if they do not achieve their intended goal in a particular case. In re Bodine, 113 B.R. 134, 135 (Bankr.W.D.N.Y.1990). Despite these courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for chapter 7 relief and then files for protection under chapter 13 before receiving a discharge in the original chapter 7 case, that the" }, { "docid": "19741235", "title": "", "text": "of Atkins is more persuasive. Even if Atkins only prohibits concurrent bankruptcy cases “which seek to discharge the same debt,” Mr. Brown was precluded from filing a subsequent chapter 13 petition with respect to any debt included but not discharged in his Confirmed Case. Bullock, 206 B.R. at 393 (emphasis in original). II. The Single Estate Rule. Some courts holding to the majority’s per se view have found that the “single estate rule” bars simultaneous bankruptcy filings. This rule prohibits concurrent eases on the basis that the “filing of simultaneous petitions is ‘contrary to the obvious contemplated function of the Bankruptcy Code to resolve a debtor’s financial affairs by administration of a debtor’s property as a single estate under a single chapter within the code.’ ” Turner v. Citi zens Nat’l Bank of Hammond (In re Turner), 207 B.R. 373, 378 (2d Cir. BAP 1997) (quoting In re Kosenko, 104 B.R. 40, 46 (Bankr.N.D.Ind.1989) (quoting Assocs. Fin. Servs. Corp. v. Cowen (In re Cowen), 29 B.R. 888, 894-95 (Bankr.S.D.Ohio 1983))). Accord Bateman v. Grover (In re Berg), 45 B.R. 899, 903 (9th Cir. BAP 1984) (“[Property cannot be an assets of both estates simultaneously.”). In In re Parson the U.S. Bankruptcy Court for the Eastern District of Virginia prohibited the reopening of a chapter 7 proceeding because the debtors’ property could not be an asset of both the reopened chapter 7 estate and the debtors’ current chapter 13 estate. No. 01-73786-SCS, 2007 WL 3306678, at *11 (Bankr.E.D.Va.2007). The courts in the minority have held that the single estate rule does not apply when a second bankruptcy filing was made after a discharge was granted in the first. Grimes v. United States (In re Grimes), 117 B.R. 531, 535-36 (9th Cir. BAP 1990) (“These cases are distinguishable in that the [single estate rule] prohibits a debtor from filing a Chapter 13 petition before the receipt of the Chapter 7 discharge.”). The Second Circuit, however, observed: Despite ... courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for [bankruptcy] relief and" }, { "docid": "10696715", "title": "", "text": "cases involving related debtors, as implying that simultaneous filings by the same debtor under different Chapters of the Code are permissible. This Court agrees with the Trustee that no such inference may be drawn from Bankruptcy Rule 1015, which, as the Advisory Committee Note states, is applicable when the debtor is named in both voluntary and involuntary petitions; when related debtors have filed petitions which should be consolidated or jointly administered; when two or more involuntary petitions are filed against the same debtor, or in similar circumstances. Neither Bankruptcy Rule 1015, nor any provision of the Bankruptcy Code addresses the propriety of simultaneous cases under different Chapters with regard to the same debtor, nor does the absence of such a provision imply that Congress permitted such cases. Lacking statutory guidance on this issue, the courts have split in two camps. The majority of courts to address this issue have ruled that only one bankruptcy case may be pending at a time and for a given debtor. E.g., In re Fulks, 93 B.R. 274, 275 (Bankr.M.D.Fla.1988); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okl.1988); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). This view, adopted by the Bankruptcy Appellate Panel of the Second Circuit in In re Turner, 207 B.R. 373, 378 (2d Cir. BAP 1997), holds that “a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code.” Under this view, a debtor is barred from filing a Chapter 13 petition before the Chapter 7 case is closed, even if the debtor has already received a discharge in the Chapter 7 case. A minority of courts, however, have declined to adopt a per se rule against such simultaneous filings and have permitted a debtor to file a second petition under Chapter 13 to reorganize the debts that have survived the Chapter 7 discharge, before the closing of the Chapter 7 case, provided the debtor had already received the Chapter 7 discharge. In re Hodurski," }, { "docid": "19741230", "title": "", "text": "to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a). A court may “take any action, even on its own initiative, ‘to prevent an abuse of process.’ ” In re Kestell, 99 F.3d 146, 149 (4th Cir.1996) (quoting 11 U.S.C. § 105(a)). Section 105(a) “grants judges the authority to dismiss a bankruptcy petition sua sponte for ineligibility, ... for lack of good faith, ... or for one of the ‘causes’ enumerated in section [1307(c) ].” Id. (internal citations omitted). Section 1307(c) provides that the court may dismiss a chapter 13 case “for cause” upon the request by a party in interest or the United States Trustee. 11 U.S.C. § 1307(c). There is no provision in the Bankruptcy Code that expressly disallows concurrent bankruptcy filings by the same debtor. Section 109 dictates who may be a debtor under the Bankruptcy Code, yet it contains no provision that prohibits a debtor from commencing multiple bankruptcy cases. Similarly, no provision of the Bankruptcy Code denies a discharge to a debtor where another proceeding in which he is a debtor is pending. Further, Bank ruptcy Rule 1015(a) appears to contemplate that multiple cases may be pending against the same debtor. Neither the United States Supreme Court nor the Court of Appeals for the Fourth Circuit has considered the issue presented in this case. However, there is existing case law that analyzes whether a debtor may maintain simultaneous cases under chapter 13 of the Bankruptcy Code. Such case law identifies three potential grounds for dismissal: the Supreme Court’s decision in Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the single estate rule, and bad faith in filing. I. The Atkins Decision. The majority of courts hold that maintaining simultaneous bankruptcy cases is per se barred. See, e.g., In re Sidebottom, 430 F.3d 893, 897-98 (7th Cir.2005); Turner v. Citizens Nat’l Bank of Hammond (In re Turner), 207 B.R. 373, 378-79 (2d Cir. BAP 1997); In re Gateway North Estates, Inc., 39 F.3d 1181 (table), 1994 WL" } ]

[ { "docid": "22608670", "title": "", "text": "(1989). Indeed, we have held that the statutory time limits applicable to lawsuits against private employers under Title VII are subject to equitable tolling. A waiver of sovereign immunity “‘cannot be implied but must be unequivocally expressed.’” United States v. Mitchell, 445 U. S. 535, 538 (1980) (quoting United States v. King, 395 U. S. 1, 4 (1969)). Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation. We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so. But an examination of the cases in which we have applied the equitable tolling doctrine as between private litigants affords petitioner little help. Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Baldwin County Welcome Center v. Brown, 466 U. S. 147, 151 (1984). Because the time limits imposed by Congress in a suit against the Government involve a waiver of sovereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants. Petitioner urges that his failure to file in a timely manner should be excused because his lawyer was absent from his office at the time that the EEOC notice was received, and that he" } ]

[ { "docid": "23705486", "title": "", "text": "classified civil service employee, her claim is also controlled by the procedures established for federal employees under the CSRA. The Supreme Court has ruled that the statutory filing deadline applicable to federal employee suits under the EEOA, 42 U.S.C. § 2000e-16(c), are subject to equitable tolling. Irwin v. Veteran’s Admin. Regional Office, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). While the opinion pres ents some interpretive difficulties, it states that statutory filing deadlines governing suits against the Government “are subject to the same rebuttable presumption of equitable tolling applicable to suits against private defendants.” Irwin, 498 U.S. at 95-96, 111 S.Ct. at 457; see Oropallo v. United States, n. 5, 994 F.2d 25, 29 n. 5. The CSRA limitations period in issue here is not only similar to, but intersects with, the EEOA provision directly addressed in Irwin. Together the two statutes provide a series of interdependent supplementary and parallel channels for federal employees seeking administrative review of claims alleging prohibited discrimination. The statutes expressly cross-reference one another, conditioning the number and sequence of open avenues of administrative and court review on the employee’s status and the nature of the claim. 42 U.S.C. § 2000e-16(a) to (c); 5 U.S.C. §§ 7701-7703. Plaintiff here initially sought review of her termination before the Merit Systems Protection Board (“MSPB”). 5 U.S.C. §§ 7701, 7702. Her case was assigned to an administrative judge who affirmed the agency. She then had an option to seek further review before the MSPB’s full Board, a district court, or the EEOC. She chose full Board review, and her petition was denied. Again, plaintiff faced an option. She had thirty days to seek review in a district court or in the EEOC. 5 U.S.C. § 7703(b)(2), 42 U.S.C. § 2000e-16(c). It was at this juncture, the government contends, that she took a late step not subject to equitable tolling. She filed her petition with the EEOC nine months late (which the EEOC treated as an untimely appeal and denied) and filed in the district court a little more than three months after that. Had plaintiff instead" }, { "docid": "22860169", "title": "", "text": "RPL, “only harmful agency error provides a basis for reversal of the agency’s action. The burden is on the appellant to show by preponderant evidence that any error caused substantial prejudice to his substantive rights.” (citations omitted)), ajfd in part and vacated in part on other grounds, 935 F.2d 279 (Fed.Cir.1991). 2. Discriminatory animus Washington contends that the alleged failure to honor her reemployment rights with respect to the GS-11/12 claim was the result of race and sex discrimination. A plaintiff must prove discriminatory intent when she alleges disparate treatment. Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir.1988). Because it is uncon-troverted that the North Island hiring personnel had never heard of Washington when they made their hiring decision, Washington lacks an element essential to her claim. Summary judgment was therefore properly granted. C. The GS-7/9 Position Washington asserts that she was entitled to priority consideration as both an RPL and PPP candidate for a second opening at Island Trees at the GS-7/9 level, and that the Navy’s failure to offer her the job violated her reemployment rights and was discriminatory. The government argues,,and the district court found, that the GS-7/9 claim is time-barred. Under the statutory scheme, a complainant with a mixed case who receives an unfavorable disposition of her discrimination claim from the MSPB may either petition the EEOC for further review of that claim or take the case directly to the appropriate district court. 5 U.S.C. § 7702(a)-(b). If she petitions the EEOC, she must wait until the Commission has issued a decision before she seeks judicial review unless 180 days have gone by, at which time she is entitled to appeal to the district court even though the EEOC has not acted. 5 U.S.C. §§ 7702, 7703(b)(2). Should she opt for the alternate route and appeal directly to the district court from the MSPB, she has thirty days from the issuance of the Board’s final decision in which to file suit. 5 U.S.C. § 7703(b)(2). The Board issued its final order in the GS-7/9 case on March 30,1990. Washington has produced evidence that" }, { "docid": "4906957", "title": "", "text": "to Rule 4(j) dismissal is good cause.... Later service or later knowledge by the defendant is irrelevant to that.” Winters, 776 F.2d at 1306. Rule 4(j) places the burden on the plaintiff to show good cause. Id. at 1305. The plaintiff here neglects to offer a satisfactory explanation for her failure to perfect timely service, much less show good cause for her lateness. The defendants also seek dismissal of the complaint on an additional basis: that plaintiffs Title VII claim was untimely filed in the first instance. Under 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1613.281(a), actions brought pursuant to Title VII must be brought within 30 days of receipt of a final decision of the agency or the EEOC. This filing period is equivalent to a statute of limitations and, therefore, subject to equitable tolling. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir.1992); Wood v. U.S. Postal Service, 956 F.2d 493, 495 (5th Cir.1992). A relaxing of the statutory filing requirement is permitted upon a showing by the plaintiff that she acted diligently to preserve her claim. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984). For instance, equitable relief from an elapsed statute of limitations has been allowed “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96, 111 S.Ct. at 458. In addition, equitable tolling occasionally has been applied in cases where a claimant, due to a lack of sophistication, does not understand the proceedings. See Rowe v. Sullivan, 967 F.2d at 192. Plaintiff in this case received final notice from the EEOC on 10 July 1991, but did not file her civil claim in the Northern District of Texas until 30 August 1991. In defense, plaintiff explains that she was overcome by “the sheer weight" }, { "docid": "5479877", "title": "", "text": "hostile work environment claim during the EEO administrative process, and, therefore, his claim is still legitimate. Plaintiff also argues that because he was a pro se litigant during the administrative process, this court should liberally construe any administrative requirements. In the alternative, plaintiff argues that his hostile work environment claim falls within the scope of the EEO investigation into his claim of age discrimination and retaliation, and, therefore, the administrative requirements were met. Failure to pursue the administrative remedies required by the EEOC regulations bars judicial relief. See e.g., Benford v. Frank, 943 F.2d 609, 612 (6th Cir.1991) (“The right to bring an action under Title VII regarding equal employment in the federal government is predicated upon the timely exhaustion of administrative remedies, as set forth in 29 C.F.R. § 1613.201 et seq.”). In this case, the Department dismissed plaintiffs hostile working environment claim in 1996 for failure to state a claim and untimeliness. In the letter dismissing the allegation, plaintiff was informed that he had the right to file an appeal with the EEOC within thirty days or file a civil action in federal court within ninety days. Def.’s Ex. 2. Plaintiff did not do so. Therefore, he failed to exhaust available administrative remedies. See Brown, 425 U.S. 820 at 829-834, 96 S.Ct. 1961, 48 L.Ed.2d 402 (dismissal upheld where the complainant did not file the judicial complaint within thirty days of the final agency action as required by 42 U.S.C. § 2000e-16(c)); Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir.2001). The Supreme Court has stated, however, that the doctrine of equitable tolling may excuse an untimely filing. Irwin v. Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“[T]he same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.”). Equitable tolling is not appropriate in this case. The Sixth Circuit considers five factors to determine whether equitable tolling is available: (1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights;" }, { "docid": "10440057", "title": "", "text": "Washington v. Garrett, 10 F.3d 1421, 1429 (9th Cir.1993). DISCUSSION I. The United States, as a sovereign, may be sued only with its consent, United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976), and waivers of sovereign immunity are to be strictly construed. United States v. Michel, 282 U.S. 656, 660, 51 S.Ct. 284, 285-86, 75 L.Ed. 598 (1931); Dieckmann v. United States, 550 F.2d 622, 624 (10th Cir.1977). However, once the government has waived its sovereign immunity, the doctrine of equitable tolling may apply to toll the statutory limitation. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990). II. We assume, without deciding, that the IRS’ service of the notice of levy on the clerk of the district court on August 22, 1985, triggered the limitations period which, unless equitably tolled, would have required Capital to bring its wrongful levy action on or before May 22, 1986, to avoid summary judgment. In Williams-Scaife v. Department of Defense Dependent Sch., 925 F.2d 346, 347 (9th Cir.1991), we applied the Supreme Court’s decision in Irwin and stated that “equitable tolling is applicable in employment discrimination cases filed by federal employees [against the government.]” The Irwin decision overruled a long line of Ninth Circuit cases which refused to apply equitable tolling in cases against the government. In Irwin, the Court held that “the same rebut-table presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” 498 U.S. at 95-96, 111 S.Ct. at 457. The Court noted that federal courts have allowed equitable tolling in situations where the claimant diligently sought judicial relief by filing a defective pleading during the statutory period or where the complainant had been induced by his adversary to allow the filing deadline to pass. Id. at 96, 111 S.Ct. at 457-58. There are other situations in which the courts have indicated that it may be proper for courts to exercise their equitable powers. In Catawba Indian Tribe of South Carolina v. United States," }, { "docid": "4606315", "title": "", "text": "three reasons for allowing equitable tolling. First, it is allowed where the plaintiff actively pursues his judicial remedies but files a defective pleading during the statutory period, such as filing in the wrong forum. Irwin v. Veterans Admin., 498 U.S. 89, 94-97, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3rd Cir.1983), cert, denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). Second, it is allowed where the deadline for filing has passed due to the plaintiffs reliance on his adversary’s misconduct or misrepresentation. Invin, 498 U.S. at 96-97, 111 S.Ct. at 458; Kocian, 707 F.2d at 753. Finally, it is allowed where the plaintiff has been prevented from asserting his rights in some “extraordinary way.” Kocian, 707 F.2d at 753. Courts generally disfavor equitable tolling where the plaintiff missed the deadline because of a lack of due diligence. Invin, 498 U.S. at 96-97, 111 S.Ct. at 458 (holding that where plaintiff filed Title VII complaint with district court late because his attorney was out of town when the E.E.O.C.’s right to sue letter was delivered to his office was not an adequate reason to justify equitable tolling). In this case, plaintiff argues that she filed her complaint with EEOC on October 6, 1992, which was clearly within the 180 day deadline. She alleges in her complaint that her claim with PHRC was cross-filed at the same time that she filed her complaint with EEOC. Complaint, para. 59. Without reviewing any of the documents referred to in plaintiffs and defendants’ briefs, it is apparent from their briefs that EEOC did not submit plaintiffs complaint to PHRC pursuant to the worksharing agreement, and that she ended up sending a complaint to PHRC directly on January 7, 1993. However, given that we are to construe the above allegations in the most favorable light to plaintiff for purposes of the motion to dismiss, defendants have failed to prove that plaintiffs claim was filed untimely and must be dismissed. See Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 272, 419 A.2d" }, { "docid": "22860172", "title": "", "text": "Department of Defense Dependent Schools, 925 F.2d 346 (9th Cir.1991) (following Irwin in Title VII case). In so holding, however, the Court observed that invocation of the equitable tolling doctrine is not appropriate in cases in which the litigant has failed to meet a deadline as a result of “garden variety” neglect. 498 U.S. at 96, 111 S.Ct. at 458. Although Washington’s pro se status must be taken into consideration, the fact that she proceeded correctly in the other two actions indicates that she was familiar with the procedural requirements. In each of those cases, the EEOC took longer than thirty days to render a decision. The district court was therefore justified in dismissing as time-barred the claims surrounding Washington’s nonselection for the GS-7/9 position. D. Motion to Compel Washington appeals the district court’s af-firmance of the magistrate judge’s November 1991 discovery order. She had sought to compel the Navy to produce various documents, some of which apparently did not exist. The magistrate granted certain of Washington’s requests and denied others. In upholding the magistrate’s ruling, the district judge noted that the defendant was not required to create documents to satisfy Washington’s discovery requests. Some of the requests she determined to be overly broad. Finally, she was concerned that the Navy’s production of certain of the documents sought by Washington might violate the confidentiality standards embodied in 5 U.S.C. § 552. See 5 U.S.C. § 552(b) (exempting certain government records from public disclosure). The district court’s ruling was reasonable and within its discretion. CONCLUSION We REVERSE the district court’s grant of summary judgment with respect to certain aspects of the RIF claim and REMAND those aspects that we have restored to the district court. Since we have found that the RIF was not a lawful personnel action, the district court is directed to remand instanter that portion of the ease to the MSPB with instructions to order the reinstatement of Washington to her GS-9 editorial position and to award back pay and benefits. Consistent with this opinion, the district court shall proceed with the race discrimination portion of the RIF" }, { "docid": "11005776", "title": "", "text": "file suit.” Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir.1993) (citing 5 U.S.C. § 7703(b)(2)). Johnson admittedly filed his complaint with the district court far more than thirty days after the Board issued its decision. This was allegedly because he did not receive the decision within that time. However, Johnson had an affirmative duty to notify the Board of any change in his address. He failed to meet this burden and cannot now rely on the results of that failure to make his complaint timely. Johnson, however, argues not only that he filed his complaint within thirty days of his receipt of the Board’s decision on July 18, 1985, but also that equitable tolling should apply because he took reasonable steps to ensure delivery of the Board’s decision. However, the doctrine of equitable tolling does not apply to Section 7703(b)(2). Glarner v. United States Dep’t of Veterans Admin., 30 F.3d 697 (6th Cir.1994). In Glarner, 30 F.3d at 701, we stated that “5 U.S.C. § 7703(b)(2) ... could not be equitably tolled despite Irwin [v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)].” There, we reasoned that “in enacting § 7703(b)(2), Congress rebutted the presumption of equitable tolling.” Id. Furthermore, even in Irwin, the supreme court noted that equitable tolling was not appropriate where a litigant failed to meet a deadline as a result of “garden variety” neglect. Irwin, 498 U.S. at 96, 111 S.Ct. at 457. Such is precisely the case presented here—Johnson failed to notify the Board of his change of address and waited six months before inquiring about its decision. Thus, the record in this case does not support applying the doctrine of equitable tolling. Therefore, because Johnson’s complaint was not timely filed, we AFFIRM the judgment of the district court. . “Cases of discrimination ... shall be filed under [42 U.S.C. § 2000e-16(c) and other statutes] as applicable. [Furthermore,] any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under" }, { "docid": "22304446", "title": "", "text": "VII, the court tolled the EEOC’s filing deadline. Id. Likewise, in Volk v. Multi-Media, Inc., 516 F.Supp. 157, 161-62 (S.D.Ohio 1981), the plaintiffs attorney failed to timely inform the Department of Labor that his client intended to sue his former employer under the Age Discrimination in Employment Act. The court took into account the fact that the plaintiffs attorney was inept and sloppy, that the defendant suffered no prejudice, and that the plaintiff was diligent in finding out about the ADEA and hiring an attorney. The court concluded that it was unwilling to visit the errors of that lawyer on his client. Id. at 162. In the context of a Title VII claim, the Supreme Court has warned, “[T]he principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect” by an attorney. Irwin, 498 U.S. at 96, 111 S.Ct. 453. In Irwin, the plaintiffs lawyer was out of the country when the right-to-sue letter was delivered to his office. Athough the statute of limitations in that case was thirty days, the lawyer filed suit forty-four days later, albeit only twenty-nine days after his client received his copy of the letter. Since the lawyer’s only excuse was his absence from the office, the Court refused to apply equitable tolling. See id. We therefore must decide whether Sloane’s behavior, as reflected by the present record, is of a type that goes beyond garden variety neglect. We conclude that it is. Sloane’s level of misbehavior went well beyond the garden variety, because Sloane affirmatively lied to his client. When she called Sloane in early September to cheek on the status of the complaint, Sloane assured her that he had filed it, when in fact he had not. In addition, he promised her a number of times that he would send or had sent her a copy of the complaint, yet he never did. We agree with the Hospital that the mere fact that counsel failed to file the complaint in a timely manner probably constitutes garden variety neglect. But his affirmative misrepresentations to" }, { "docid": "6042205", "title": "", "text": "Court addressed the statutory requirement that a Title VII plaintiff file her complaint within 30 days of receipt of notice of final action taken by the EEOC, 42 U.S.C. § 2000e-16(c) (1994). The Court explained that that requirement “is a condition to the waiver of sovereign immunity and thus must be strictly construed.” 498 U.S. at 94, 111 S.Ct. at 456. The Court then held that a claimant against the government may benefit from equitable tolling to the same extent as may a claimant against a private party, unless Congress has legislated to the contrary. Id. at 95-96, 111 S.Ct. at 457 (“the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States”). Equitable tolling of the filing requirement was sensible, the Court held, because it “amounts to little, if any, broadening of the congressional waiver” of sovereign immunity. Id. at 95,. Ill S.Ct. at 457. Applying these principles to the facts presented, the Supreme Court concluded that the claimant could not benefit from equitable tolling. Accordingly the Court affirmed a dismissal for lack of jurisdiction. Courts since Irwin have held that principles of equitable tolling apply not only to statutory deadlines, but also and equally to regulatory filing deadlines. Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir.1995); Wojik v. Postmaster General, 814 F.Supp. 8, 8 (S.D.N.Y.1993); see also 29 C.F.R. § 1614.604(c) (1995) (“The time limits in this part are subject to waiver, estoppel and equitable tolling”). Failure to meet an administrative deadline, thei’efore, like a failure to meet a statutory deadline, is not fatal to a plaintiffs ease if that plaintiff can establish a basis for tolling the deadline. Dillard, the government, and several courts read Irwin to stand for the proposition that the statutory and administrative time limits governing a plaintiffs claim against the federal government are not jurisdictional. (Pl.Mem. at 1, 11; Def. Reply at 6 n. 5); see, e.g., Fadem v. United States, 52 F.3d 202, 206 (9th Cir.1994) (Quiet Title Act statute of limitations); Johnson v. Runyon,' 47 F.3d 911, 917 (7th" }, { "docid": "11141940", "title": "", "text": "why she could not have notified her attorney of her intent to appeal in the event of an unfavorable decision by the EEOC. She also fails to explain why she could not have avoided overseas mail and communicated via telephone or facsimile machine. Because it was within Wilson’s power to ameliorate the circumstances that resulted in her untimely filing, we agree with the D.C. Circuit that overseas delays do not warrant tolling. See Rao v. Baker, 898 F.2d 191 (D.C.Cir.1990) (holding that mailing delays to Philippines did not justify tolling or excuse lack of diligence). Indeed, to some extent, we question the relevance of the overseas delays to Wilson’s claim for equitable tolling, because her attorney could have responded for her. Notice to her attorney constituted notice to Wilson, Irwin, 498 U.S. at 96, 111 S.Ct. at 458; see also 29 C.F.R. § 1614.402(b) (“If the complainant is represented by an attorney of record, then the 30-day time period ... shall be calculated from the receipt of the required document by the attorney.”), and Wilson offers no explanation for her attorney’s failure to protect her rights. Accordingly, Wilson’s counsel’s inaction does not warrant an extension of the limitations period. See Irwin, 498 U.S. at 96, 111 S.Ct. at 458 (refusing to toll a 30 day statute of limitations in a Title VII case, where the plaintiff was late in filing because his attorney had been out of the office when the EEOC notice was received, and holding that “principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect”). Wilson has failed to meet her burden to show that the EEOC should have applied equitable tolling to her appeal; therefore, the district court properly granted summary judgment to the Secretary. Ill For the foregoing reasons, we AFFIRM the judgment of the district court. . Form 573 is the EEOC’s \"Notice of Appeal/Petition” form. 29 C.F.R. § 1614.403(a). Under the applicable regulations, ”[t]he complainant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what he or she is appealing.” Id." }, { "docid": "22860171", "title": "", "text": "she timely petitioned the EEOC for review of the GS-7/9 claim. Rather than wait for a decision from the EEOC as she had in the other actions, however, she instead filed in the district court on June 5, 1990. Since she did not meet the thirty-day deadline and 180 days had not elapsed from the time she sought EEOC review, her complaint was untimely. Washington asserts that she should be excused for filing late because she assumed when she did not hear anything from the EEOC within thirty days’ time that the EEOC was not going to act and that she had therefore exhausted her administrative remedies. In Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that federal statutory time limitations on suits against the government are not jurisdictional in nature. Rather, “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95-96, 111 S.Ct. at 457-58; see also Williams-Scaife v. Department of Defense Dependent Schools, 925 F.2d 346 (9th Cir.1991) (following Irwin in Title VII case). In so holding, however, the Court observed that invocation of the equitable tolling doctrine is not appropriate in cases in which the litigant has failed to meet a deadline as a result of “garden variety” neglect. 498 U.S. at 96, 111 S.Ct. at 458. Although Washington’s pro se status must be taken into consideration, the fact that she proceeded correctly in the other two actions indicates that she was familiar with the procedural requirements. In each of those cases, the EEOC took longer than thirty days to render a decision. The district court was therefore justified in dismissing as time-barred the claims surrounding Washington’s nonselection for the GS-7/9 position. D. Motion to Compel Washington appeals the district court’s af-firmance of the magistrate judge’s November 1991 discovery order. She had sought to compel the Navy to produce various documents, some of which apparently did not exist. The magistrate granted certain of Washington’s requests and denied others. In upholding the magistrate’s" }, { "docid": "11141941", "title": "", "text": "offers no explanation for her attorney’s failure to protect her rights. Accordingly, Wilson’s counsel’s inaction does not warrant an extension of the limitations period. See Irwin, 498 U.S. at 96, 111 S.Ct. at 458 (refusing to toll a 30 day statute of limitations in a Title VII case, where the plaintiff was late in filing because his attorney had been out of the office when the EEOC notice was received, and holding that “principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect”). Wilson has failed to meet her burden to show that the EEOC should have applied equitable tolling to her appeal; therefore, the district court properly granted summary judgment to the Secretary. Ill For the foregoing reasons, we AFFIRM the judgment of the district court. . Form 573 is the EEOC’s \"Notice of Appeal/Petition” form. 29 C.F.R. § 1614.403(a). Under the applicable regulations, ”[t]he complainant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what he or she is appealing.” Id. . The Commission used May 3 — the date when Wilson's attorney received notice of the denial of her application — and June 7 — the date that Wilson’s attorney filed the Form 573 with the EEOC — to establish that she had not appealed within the thirty-day limit." }, { "docid": "20438522", "title": "", "text": "subject to equitable tolling. The en banc court held that the time period in § 7266(a) is subject to equitable tolling. In so doing, the court “t[ook its] guidance” from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Bailey, 160 F.3d at 1363. In that case, Shirley Irwin was fired from his job with the VA. Subsequently, he sought to bring a Title VII claim in district court after exhausting his remedies within the agency and before the Equal Employment Opportunity Commission (“EEOC”). 498 U.S. at 90-91, 111 S.Ct. 453. Section 2000e-16(c) of Title 42 provided at the time, as a statute of limitations, that a Title VII complaint had to be filed “within thirty days of receipt of notice of final action” by the EEOC. Id. at 94, 111 S.Ct. 453. Although Irwin did not file his complaint in a timely fashion, he argued that equitable tolling should apply and excuse his delay. Id. at 91, 111 S.Ct. 453. After the district court dismissed Irwin’s complaint and the Fifth Circuit affirmed the dismissal, the Supreme Court granted certiorari. Deciding the case, the Court held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95, 111 S.Ct. 453. The Court further held that equitable tolling should apply to 42 U.S.C. § 2000e-16(c), stating that the use of equitable tolling against the government did not improperly broaden Congress’s statutory waiver of sovereign immunity. Id. at 95-96, 111 S.Ct. 453. In Bailey, we viewed § 7266(a) as a time of review provision, see 160 F.3d at 1365-66, but we declined to cabin Irwvri to cases involving statutes of limitations. Id. We stated that the Supreme Court’s opinion in Irwin did not “distinguish among the various kinds of time limitations that may act as conditions to the waivers of sovereign immunity required to permit a cause of action to be pitched against the United States.” Id. at 1364. We further stated that the rule we drew from Irwin was" }, { "docid": "1412592", "title": "", "text": "1990, yet Plaintiff did not file this suit, until more than a year later on September 27, 1991. Thus, under either the 30 or 90 day limitations period, Plaintiff failed to timely file her suit. B. Equitable Tolling Plaintiff also argues that the doctrine of equitable tolling saves her claim. In Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that the doctrine of equitable tolling may excuse á federal employee from filing suit within a certain time period after administrative denial of an employment discrimination claim by the EEOC. However, the Court in Irwin also made clear that the Supreme Court has only allowed equitable tolling in situations where “the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complaint has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96, 111 S.Ct. at 457-458. The failure of Plaintiffs former attorney to file suit in a timely manner after he received the EEOC’s denial of his client’s claim is no such situation. As Plaintiff acknowledges, the Supreme Court also held in Irwin that “[u]nder our system of representative litigation, each party is bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.” Irwin, 498 U.S. at 92, 111 S.Ct. at 456 (punctuation and citations omitted). Thus, the Court finds that the doctrine of equitable tolling does not save Plaintiffs claim. While the Court does not in any way condone the misconduct of Plaintiffs former attorney, Plaintiffs proper remedy is to pursue proper action against her former attorney in state court, as she has done. Finally, because the Court finds that the statute of limitations bars Plaintiffs claim, and that the equitable tolling doctrine does not save her claim, the Court need not address Defendant’s remaining arguments. IV. CONCLUSION Accordingly, based on the above, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion to" }, { "docid": "14280175", "title": "", "text": "435 (1990). The Irwin Court recognized that the statute of limitations may be equitably tolled even where the statute of limitations is a prerequisite to federal court jurisdiction, rendering the cases cited by the government inapplicable. In Irwin, the plaintiff filed an untimely civil action under Title VII based on a claim that the Veterans Administration unlawfully discharged plaintiff because of his race and physical disability. The plaintiff, Irwin, failed to file suit within 30 days of receiving the EEOC’s notice rejecting his claim. Irwin claimed that he failed to file because the EEOC letter was sent to his attorney’s office while his attorney was on vacation. As a result of his late receipt of the letter, Irwin filed suit 44 days after the letter arrived at his attorney’s office. After finding that Irwin’s complaint was untimely, the Court considered whether his error may be excused under equitable tolling principles. The Court viewed this case as an opportunity to adopt “a general rule to govern the applicability of equitable tolling in suits against the Government.” Irwin, 111 S.Ct. at 457. The Court stated: Once Congress has made such a waiver [of sovereign immunity to allow suits by citizens against the government], we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Id. The Court then held “that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. The Court went on to state that federal courts have used equitable tolling only “sparingly.” Id. The Court then offered two non-exhaustive examples of where the Court has previously recognized equitable tolling: where the claimant has actively pursued his judicial remedies but has filed a defective pleading and where claimant has been induced or tricked by his adversary into allowing the filing deadline to pass. Id. at 457-8. The Court held that Irwin’s failure to timely file was a result of excusable neglect. Id." }, { "docid": "5479878", "title": "", "text": "within thirty days or file a civil action in federal court within ninety days. Def.’s Ex. 2. Plaintiff did not do so. Therefore, he failed to exhaust available administrative remedies. See Brown, 425 U.S. 820 at 829-834, 96 S.Ct. 1961, 48 L.Ed.2d 402 (dismissal upheld where the complainant did not file the judicial complaint within thirty days of the final agency action as required by 42 U.S.C. § 2000e-16(c)); Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir.2001). The Supreme Court has stated, however, that the doctrine of equitable tolling may excuse an untimely filing. Irwin v. Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“[T]he same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.”). Equitable tolling is not appropriate in this case. The Sixth Circuit considers five factors to determine whether equitable tolling is available: (1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiffs reasonableness in remaining ignorant of the notice requirement. Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988). Plaintiff had actual notice of the filing requirements, and none of the other factors help his case. The fact that plaintiff was pro se during the administrative process does not justify applying the doctrine. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.1999) (stating that ignorance of the law, even for a pro se prisoner, does not excuse prompt filing under the Andrews factors); Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.1991) (“[L]ack of knowledge of applicable filing deadlines is not a basis for tolling. Neither is a plaintiffs unfamiliarity with the legal process nor his lack of representation during the applicable filing period.”). Additionally, plaintiffs claim of hostile work environment is not within the scope of his age discrimination and retaliation claim that was processed by the EEOC. A judicial complaint must be limited “to the scope of the EEOC investigation" }, { "docid": "23705487", "title": "", "text": "sequence of open avenues of administrative and court review on the employee’s status and the nature of the claim. 42 U.S.C. § 2000e-16(a) to (c); 5 U.S.C. §§ 7701-7703. Plaintiff here initially sought review of her termination before the Merit Systems Protection Board (“MSPB”). 5 U.S.C. §§ 7701, 7702. Her case was assigned to an administrative judge who affirmed the agency. She then had an option to seek further review before the MSPB’s full Board, a district court, or the EEOC. She chose full Board review, and her petition was denied. Again, plaintiff faced an option. She had thirty days to seek review in a district court or in the EEOC. 5 U.S.C. § 7703(b)(2), 42 U.S.C. § 2000e-16(c). It was at this juncture, the government contends, that she took a late step not subject to equitable tolling. She filed her petition with the EEOC nine months late (which the EEOC treated as an untimely appeal and denied) and filed in the district court a little more than three months after that. Had plaintiff instead initially sought EEOC review, and then taken a late step from the EEOC to court, the case would have been on all fours with the facts in Irwin. We see no principled reason for failing to extend Irwin’s rebuttable presumption to the instant filing deadline. The only arguments to the contrary below were similar to those rejected in Irwin, and the government has not renewed them here. Allowing equitable tolling of one but not the other of these interrelated administrative steps could encourage untoward forum shopping, especially in light of the short time periods involved. Cf. Johnson v. Burnley, 887 F.2d 471, 477 (4th Cir.1989), reh’g granted, en banc, (in pre-Irwin decision involving same statutes, “it makes no sense to provide the possibility of equitable tolling of the 30 day deadline for one plaintiff but not the other merely because of the different procedural routes taken ... prior to their arrival in federal district court.”) Accordingly, we join those courts which have held, under the authority of Irwin, that the limitations period in 5 U.S.C." }, { "docid": "22239404", "title": "", "text": "comprehensive jurisdictional impediment to a civil action but instead merely raised a limitations barrier which “is subject to waiver, estoppel, and equitable tolling.” Id. at 392-98, 102 S.Ct. 1127. A district court’s application or rejection of equitable tolling is scrutinized for abuse of discretion. Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir.1998). Generally, an abuse of discretion is evident “when the reviewing court is firmly convinced that a mistake has been made. A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses • [an] erroneous legal standard.” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995) (quotations and citations omitted). Graham-Humphreys has protested that the lower court abused its discretion by declining to toll limitations, because (1) her employment commitments allegedly contributed to her failure to timely collect her certified mail; (2) both the EEOC’s RTS notice, and the EEOC-composed memorial of her acceptance of that document, pronounced that the ninety-day filing timetable commenced to accrue upon her “receipt” of the RTS notification, which she understood to mean her taking actual physical custody of that document; and (3) she had purportedly acted without professional legal advice regarding the limitations question. The federal courts sparingly bestow equitable tolling. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988); Brown v. Mead Corp., 646 F.2d 1163, 1165 (6th Cir.1981). Typically, equitable tolling applies only when a litigant’s failure to meet a legally-mandated dead line unavoidably arose from circumstances beyond that litigant’s control. See Baldwin County, 466 U.S. at 151, 104 S.Ct. 1723 (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”); see also Johnson v. United States Postal Service, 64 F.3d 233, 238 (6th Cir.1995), which directed that a petitioner’s failure to satisfy a deadline caused by “garden variety neglect” cannot be excused by equitable tolling. (Citing Irwin, 498 U.S. at 96, 111 S.Ct. 453). Absent compelling equitable considerations, a" }, { "docid": "22860170", "title": "", "text": "the job violated her reemployment rights and was discriminatory. The government argues,,and the district court found, that the GS-7/9 claim is time-barred. Under the statutory scheme, a complainant with a mixed case who receives an unfavorable disposition of her discrimination claim from the MSPB may either petition the EEOC for further review of that claim or take the case directly to the appropriate district court. 5 U.S.C. § 7702(a)-(b). If she petitions the EEOC, she must wait until the Commission has issued a decision before she seeks judicial review unless 180 days have gone by, at which time she is entitled to appeal to the district court even though the EEOC has not acted. 5 U.S.C. §§ 7702, 7703(b)(2). Should she opt for the alternate route and appeal directly to the district court from the MSPB, she has thirty days from the issuance of the Board’s final decision in which to file suit. 5 U.S.C. § 7703(b)(2). The Board issued its final order in the GS-7/9 case on March 30,1990. Washington has produced evidence that she timely petitioned the EEOC for review of the GS-7/9 claim. Rather than wait for a decision from the EEOC as she had in the other actions, however, she instead filed in the district court on June 5, 1990. Since she did not meet the thirty-day deadline and 180 days had not elapsed from the time she sought EEOC review, her complaint was untimely. Washington asserts that she should be excused for filing late because she assumed when she did not hear anything from the EEOC within thirty days’ time that the EEOC was not going to act and that she had therefore exhausted her administrative remedies. In Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that federal statutory time limitations on suits against the government are not jurisdictional in nature. Rather, “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95-96, 111 S.Ct. at 457-58; see also Williams-Scaife v." } ]

[ { "docid": "22669998", "title": "", "text": "parties. Preliminary to discussing the challenged precedential decisions prompted by these remands, we briefly recount the events leading to those decisions. A. Proceedings Leading to Prece-dential Decisions 1. Jian Hui Shao a. Initial Agency Proceedings In February 2002, Jian Hui Shao, a native of Fuzhou City in China’s Fujian Province, attempted to enter the United States unlawfully. In subsequent removal proceedings, Jian Hui Shao conceded re-movability but applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 el seq., and for relief under the Convention Against Torture (“CAT”). Jian Hui Shao asserted that he feared forcible sterilization in China because he had fathered two daughters in that country and Chinese law prohibited him, a non-agricultural worker, from having more than one child. To demonstrate the reasonableness of his fear — and to explain his abandonment of his wife in China only weeks after discovering her second pregnancy — Jian Hui Shao testified that he had been beaten and jailed by Chinese officials after his wife missed a gynecological examination intended to ensure her compliance with family planning policies and he refused to disclose her whereabouts. Identifying various inconsistencies and implausibilities in Jian Hui Shao’s account, the immigration judge (“IJ”) found him not credible in all respects but one: the fact that he now had two children in China. See In re Jian Hui Shao, No. [ A XX XXX XXX ], at 14-15 (Immig. Ct. N.Y. City Feb. 27, 2003). The IJ denied petitioner relief from removal, a determination summarily upheld by the BIA on initial direct review. See In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004). b. Proceedings in this Court On Jian Hui Shao’s initial petition for review by this court, we concluded that the agency’s adverse credibility determination was supported by substantial evidence. See Jian Hui Shao v. BIA, 465 F.3d at 500-01. Nevertheless, we remanded the case for further agency consideration of the question “under what circumstances, if any, having two children in China is sufficient grounds for a well-founded" } ]

[ { "docid": "22670037", "title": "", "text": "specified that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, when a petitioner bears the burden of proof, his failure to adduce evidence can itself constitute the “substantial evidence” necessary to support the agency’s challenged decision. See generally Zhou Yun Zhang v. INS, 386 F.3d 66, 78-79 (2d Cir.2004) (holding that adverse credibility determination by itself can “constitute substantial evidence to support the conclusion that [the petitioner] failed to carry his burden of proof on his persecution claim,” in absence of other corroborative evidence), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc). Moreover, when a petitioner challenges “the factual findings underlying the immigration court’s determination that [the petitioner] has failed to satisfy his burden of proof’ on the issue of past persecution or a well-founded fear of future persecution, we will not disturb the BIA’s ruling unless we conclude that “no reasonable fact-finder could have failed to find” in favor of petitioner. Wu Biao Chen v. INS, 344 F.3d at 275 (internal quotation marks omitted). That conclusion is not warranted in any of the three cases at issue. 1. Jian Hui Shao In petitioning this court for review of the BIA’s precedential decision in his case, Jian Hui Shao challenges neither the agency’s response to the statutory interpretation question posed on remand by this court, nor the three-step evidentiary framework identified by the BIA as useful to determining when a claimed fear of future sterilization on removal to China is well founded. Further, petitioner raises no objection to the BIA (as opposed to an IJ) weighing the record evidence or making factual determinations in his case. Instead, the singular focus of Jian Hui Shao’s petition is factual. Petitioner argues that the BIA erred in finding that he failed to demonstrate persuasively that (1) his second child’s birth would be viewed as a violation of family planning regulations in Fujian Province, see Jian Hui Shao Br. at 1, and (2) he “would" }, { "docid": "22669999", "title": "", "text": "gynecological examination intended to ensure her compliance with family planning policies and he refused to disclose her whereabouts. Identifying various inconsistencies and implausibilities in Jian Hui Shao’s account, the immigration judge (“IJ”) found him not credible in all respects but one: the fact that he now had two children in China. See In re Jian Hui Shao, No. [ A XX XXX XXX ], at 14-15 (Immig. Ct. N.Y. City Feb. 27, 2003). The IJ denied petitioner relief from removal, a determination summarily upheld by the BIA on initial direct review. See In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004). b. Proceedings in this Court On Jian Hui Shao’s initial petition for review by this court, we concluded that the agency’s adverse credibility determination was supported by substantial evidence. See Jian Hui Shao v. BIA, 465 F.3d at 500-01. Nevertheless, we remanded the case for further agency consideration of the question “under what circumstances, if any, having two children in China is sufficient grounds for a well-founded fear of future persecution.” Id. at 501. In so ruling, we noted that, in Jian Xing Huang v. INS, this court had “expressed skepticism” as to whether an alien with two children born in the United States could demonstrate a well-founded fear of forced sterilization on removal to China “absent specific facts — beyond the general conditions in China — giving rise to his subjective fear.” Jian Hui Shao v. BIA 465 F.3d at 501 (citing Jian Xing Huang v. INS, 421 F.3d at 129). Nevertheless, because Jian Hui Shao’s children “were born in and live in China,” we considered the possibility that such circumstances might warrant a different assessment of the objective reasonableness of petitioner’s professed fear. Id. (emphasis added). Noting that the INA’s definition of a “refugee” did not clearly resolve the issue and that the BIA — the agency charged with the INA’s enforcement and thus entitled to deference with regard to the statute’s interpretation — had not previously considered the point, we decided to remand. See id. at 501-03 (citing Chevron" }, { "docid": "22670038", "title": "", "text": "to find” in favor of petitioner. Wu Biao Chen v. INS, 344 F.3d at 275 (internal quotation marks omitted). That conclusion is not warranted in any of the three cases at issue. 1. Jian Hui Shao In petitioning this court for review of the BIA’s precedential decision in his case, Jian Hui Shao challenges neither the agency’s response to the statutory interpretation question posed on remand by this court, nor the three-step evidentiary framework identified by the BIA as useful to determining when a claimed fear of future sterilization on removal to China is well founded. Further, petitioner raises no objection to the BIA (as opposed to an IJ) weighing the record evidence or making factual determinations in his case. Instead, the singular focus of Jian Hui Shao’s petition is factual. Petitioner argues that the BIA erred in finding that he failed to demonstrate persuasively that (1) his second child’s birth would be viewed as a violation of family planning regulations in Fujian Province, see Jian Hui Shao Br. at 1, and (2) he “would face a reasonable possibility of persecution if removed,” id. at 8. Because we conclude that substantial evidence supports the BIA’s findings and that the record does not compel contrary determinations, we reject Jian Hui Shao’s challenge as without merit. a. Petitioner’s Failure to Adduce Credible Evidence as to the Circumstances of His Wife’s Second Pregnancy Supports the BIA’s Finding that He Failed to Carry His Burden at the Violation Step of Analysis Petitioner submits that, at the violation step of analysis, the BIA erred in noting record evidence of various exceptions to China’s one-child policy without making further inquiry to determine if Jian Hui Shao qualified for any of these exceptions. We are not persuaded. The argument ignores the very point made by the BIA: the burden was on Jian Hui Shao to demonstrate that Chinese officials would view his wife’s second pregnancy after the birth of their first daughter as a violation of family planning policy. Record evidence showed that second pregnancies might be authorized in Fujian Province when a couple’s first child was" }, { "docid": "22670019", "title": "", "text": "child, nothing in the record indicated that the mandate was carried out through proscribed forced sterilization as opposed to China’s “well-documented system of offering incentives to obtain compliance with birth control limits.” In re J-H-S-, 24 I. & N. Dec. at 203 (noting that “[o]n balance, the evidence suggests that physical coercion to achieve compliance with family planning goals is uncommon and unsanctioned by China’s national laws, and that the overall policy is much more heavily reliant on incentives and economically-based penalties”). The BIA thus concluded that, “[a]s a whole, the record lacks persuasive evidence to prove that the mere birth of two children in China would trigger family planning enforcement efforts that would rise to the level of persecution under the circumstances of this case.” Id. Accordingly, it dismissed Jian Hui Shao’s petition for relief from removal, ruling that he had failed to carry his burden to demonstrate a well-founded fear of persecution in China based simply on the birth of his two children in that country. 2. Ji Wen Shi On the same day that the BIA concluded that Jian Hui Shao was not entitled to relief from removal based on his having fathered two children in China, another BIA panel determined that Ji Wen Shi was not entitled to such relief based on the birth of his two children in the United States. Assuming the genuineness of Ji Wen Shi’s subjective fear of forced sterilization if returned to China, the BIA indicated that the determinative question was whether petitioner had “met his burden of demonstrating an objectively reasonable fear of persecution.” In re J-W-S- 24 I. & N. Dec. at 188. Although the J-W-S panel did not specifically reference the three-part analysis identified in J-H-S-, it appears to have concluded that Ji Wen Shi had carried his burden at the “policy” and “violation” steps and, thus, focused its attention almost exclusively on the question of whether petitioner had demonstrated a reasonable possibility of enforcement amounting to persecution on return to China. In deciding this question, the BIA noted that both parties had submitted numerous documents on remand" }, { "docid": "13631836", "title": "", "text": "and a- factory supervisor during the union demonstration, and that supervisor’s subsequent visits to petitioner’s parents’ home, were attributable to personal anger, not politics. The IJ found no evidence that the public security bureau or any other government official ever threatened petitioner. With respect to petitioner’s claimed fear of future persecution, the IJ concluded that, although petitioner had a subjective fear of future persecution based on China’s restrictive family planning policies, she failed to demonstrate that this fear was objectively reasonable. Citing country reports on conditions in China, the IJ concluded that petitioner would, “most likely,” be fined if she returned to China with two children born in the United States, action that “does not amount to persecution.” IJ Ruling, July 24, 2002, at 9-11. Further noting China’s “very large floating population,” the IJ found that, on return to China, petitioner might well relocate to an area where state family planning policies are “not strictly enforced.” Id. at 11. Accordingly, because the IJ found that petitioner failed to establish past persecution or a well-founded fear of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions" }, { "docid": "18360089", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We consider here whether a person who fathers or gives birth to two or more children in China, in apparent violation of China’s family planning policies, may qualify on that basis alone as “a person who has a well founded fear that he or she will be forced” by the Chinese government “to abort a pregnancy or to undergo involuntary sterilization” and may accordingly qualify as a refugee. See 8 U.S.C. § 1101(a)(42) (defining “refugee”). We consider whether this question of statutory interpretation should be decided in the first instance by the administrative agency charged with enforcing the relevant portion of the Immigration and Nationality Act of 1952 (“INA”). Petitioner Jian Hui Shao, a native and citizen of China, seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming without opinion an order of Immigration Judge (“IJ”) William Van Wyke denying his application for asylum, withholding of removal pursuant to the INA, and relief under the Convention Against Torture (“CAT”), and ordering petitioner removed to China. See In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Feb. 27, 2003). Petitioner argued that he was entitled to asylum on the ground that he had fled China to escape its family planning program and is at risk of being forcibly sterilized if he returns to China because he and his wife have two children. The IJ, largely because he did not find Shao’s testimony credible, denied all his applications for relief and ordered him removed to China. The BIA affirmed without opinion as prescribed by 8 C.F.R. § 1003.1(e)(4), see generally Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir.2006) (describing BIA “streamlining” program), and this petition followed. Introduction In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. After being served a Notice to Appear by the Immigration and Naturalization Service (“INS”), he conceded removability as charged and applied for asylum and other relief. In his airport interview, his" }, { "docid": "22670086", "title": "", "text": "The Critical Point That No Petitioner Has Demonstrated A Reasonable Possibility That He Or She Will Face Forced Sterilization On Removal To China, We Identify No Error In Its Denials Of Asylum To Petitioners Jian Hui Shao And Ji Wen Shi Or In Its Denial Of Reopening Or Reconsideration To Petitioner Show Yung Guo. (4)With respect to petitioner Show Yung Guo, the BIA acted within its discretion in determining that she failed to adduce sufficient evidence to support reopening on the alternative ground that she qualified for relief from removal as an asylee refugee. Accordingly, the petitions for review are Denied. . Although we review the denial of Show Yung Guo's motion to reopen only for abuse of discretion, see infra at 168, our identification of substantial record evidence supporting the BIA's factual findings permits us readily to conclude that the agency's decision-making in this case was not arbitrary or capricious. . The 1999 Q & A Handbook states in relevant part: What birth-control measures are to be imposed upon birth of a first child/ a second child pursuant to the provincial family planning regulations? A: An IUD insertion is mandatory upon birth of a first child; sterilization upon birth of a second child. 1999 Q & A Handbook ¶ 16. The identical question and answer appears in the 2005 version of the handbook. See Changle City Family-Planning Information Promotion Q & A for General Public (Mar.2005) (\"2005 Q & A Handbook”). . We note that in none of the three cases here at issue did the government argue that petitioners could avoid future persecution by relocating to another region in China. See 8 C.F.R. § 208.13(b)(2)(h) (“An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country ..., if under all the circumstances it would be reasonable to expect the applicant to do so”); id. § 208.13(b)(3)(h) (placing the burden of proving reasonableness of relocation on government where \"the persecutor is a government or is government-sponsored”); see also Jin Xiu Chen v. U.S. Dep’t of" }, { "docid": "22670040", "title": "", "text": "a girl. See In re J-H-S-, 24 I. & N. Dec. at 198-99, 202 (citing 2005 Country Report § 1(f); 2005 Profile at 49; 1998 Profile at 25). Because Jian Hui Shao had failed to testify credibly as to the circumstances surround ing his wife’s second pregnancy, the BIA could not reliably determine whether petitioner had sought or been granted such authorization, a fact relevant to determining whether government officials would view the birth of his second daughter as a violation of Chinese family planning policies. Where a petitioner thus fails to adduce “reliable, specific, objective” evidence establishing the “context and believability” of his claimed fear of persecution, we can hardly conclude that the BIA was compelled to resolve the point in his favor. Ramsameachire v. Ashcroft, 357 F.3d at 178; accord Yi Long Yang v. Gonzales, 478 F.3d at 140-41; see also Jian Xing Huang v. INS, 421 F.3d at 128-29 (holding that BIA did not err in finding that petitioner failed to carry burden of demonstrating well-founded fear of forced sterilization on removal to China based on births of two children in United States, the first being a girl, because in Fujian Province, “a second child is often permitted if the first child is a girl” and “there is no indication that [petitioner] would be subject to forced sterilization for having a second child”). b. At the Enforcement Step of Analysis, Substantial Evidence Supports the BIA’s Finding that Petitioner Failed to Demonstrate a Reasonable Possibility of Forced Sterilization on Removal to China At the enforcement step of analysis, Jian Hui Shao faults the BIA’s finding that he failed to demonstrate a reasonable possibility of forced sterilization on removal to China. We disagree. The BIA acknowledged the evidence most favorable to petitioner on the issue of enforcement, specifically, statements in the 2006 Country Report (a) indicating that methods for enforcing China’s birth limits “sometimes left women with little practical choice but to undergo abortion or sterilization,” In re J-H-S-, 24 I. & N. Dec. at 200, and (b) acknowledging “reports” of some women’s “forced sterilization,” id. at 202; see" }, { "docid": "22670011", "title": "", "text": "the same time, however, we identified error in the BIA’s assessment of the evidence Show Yung Guo marshaled in support of her second motion. Id. at 115. We noted first that the proffered official documents were obviously “not available” at the time of petitioner’s removal hearing because they all post-dated those proceedings. Id. We further characterized the documents as “unquestionably” material to the issue of whether conditions in China had changed to expose returning Chinese nationals with two children to forced sterilization. Id. Concluding that “[i]t is not apparent to us that the BIA ever really paid any attention to the documents,” we remanded the case to the BIA with directions “to consider Guo’s evidence of changed circumstances” and to determine “whether, in light of any such eircum- stances, she can establish a well-founded fear of persecution.” Id. B. The Challenged Precedential Decisions With this background to how the BIA came to afford each of these three cases further review, we summarize the challenged precedential decisions. 1. Jian Hui Shao a. The Need for Case-by-Case Analysis to Identify Aliens Who Demonstrate a Wellr-Founded Fear of Future Persecution Based on the Birth of More than One Child On June 7, 2007, a three-member panel of the BIA addressed the question posed by this court in its remand order: is “having two children in China ... sufficient grounds for a well-founded fear of persecution”? Jian Hui Shao v. BIA, 465 F.3d at 501. The BIA determined that the question admitted no categorical answer; it could be resolved only on a case-by-ease basis. [A]n alien who has established that he or she has had two children in China may qualify as a refugee if the evidence presented establishes, on a case-by-case basis, that the births violated family planning policies in that alien’s local province, municipality, or other locally-defined area, and that current local family planning enforcement efforts would give rise to a well-founded fear of perse- ' cution because of the violation. In re J-H-S-, 24 I. & N. Dec. at 197-98 (emphasis added). The response, which presumes an alien’s demonstration of a" }, { "docid": "22670018", "title": "", "text": "87). While acknowledging that, in the State Department’s 2006 Country Report for China, reference was made to unattributed “reports” of forced sterilization in Fujian Province, see id. at 200, 202 (citing 2006 Country Report § lffl), the BIA decided that such reports were insufficient to establish the objective reasonableness of Jian Hui Shao’s professed fear of sterilization in light of evidence that the use of force was prohibited by Chinese law and State Department interviews with visa applicants from Fujian Province in 2006 “yielded ‘no evidence’ of forced abortions.” Id. at 203 (quoting 2007 Profile ¶ 99). Although the documents prompting remand in Shou Yung Guo v. Gonzales, 463 F.3d at 113, see supra at [146-47], had not been part of the record at Jian Hui Shao’s removal proceedings, the BIA nevertheless considered the possibility that this evidence might support an “enforcement” finding favorable to petitioner at the third step of analysis. The BIA concluded that it did not because, although one document referenced mandatory sterilization in Changle City after the birth of a second child, nothing in the record indicated that the mandate was carried out through proscribed forced sterilization as opposed to China’s “well-documented system of offering incentives to obtain compliance with birth control limits.” In re J-H-S-, 24 I. & N. Dec. at 203 (noting that “[o]n balance, the evidence suggests that physical coercion to achieve compliance with family planning goals is uncommon and unsanctioned by China’s national laws, and that the overall policy is much more heavily reliant on incentives and economically-based penalties”). The BIA thus concluded that, “[a]s a whole, the record lacks persuasive evidence to prove that the mere birth of two children in China would trigger family planning enforcement efforts that would rise to the level of persecution under the circumstances of this case.” Id. Accordingly, it dismissed Jian Hui Shao’s petition for relief from removal, ruling that he had failed to carry his burden to demonstrate a well-founded fear of persecution in China based simply on the birth of his two children in that country. 2. Ji Wen Shi On the same" }, { "docid": "22316571", "title": "", "text": "PER CURIAM. Petitioner Xu Duan Dong, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of a December 16, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a December 29, 1997 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and for withholding of removal. At the hearing before the IJ, petitioner testified that, having fathered three children, he had suffered persecution, including forcible sterilization, under China’s family-planning policy, and that he had a well-founded fear of further persecution upon return to China. The IJ found petitioner to be not credible, citing inconsistencies among petitioner’s testimony and other evidence in the record, the lack of corroborating documentary evidence, failure of petitioner’s allegations to comport with record evidence on conditions in China, and petitioner’s demeanor at the hearing. Where, as here, the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). In this case, the IJ found that an essential factual allegation underlying petitioner’s asylum claim — that he was forced to undergo surgical sterilization without an anesthetic—was omitted from petitioner’s three asylum applications. Although petitioner eventually alleged—in a brief affidavit supplementing his third asylum application—that he was forcibly sterilized, the IJ reasoned that a delay" }, { "docid": "22750935", "title": "", "text": "PETER W. HALL, Circuit Judge. On April 16,1997, an Immigration Judge (“IJ”) denied petitioner Wei Guang Wang’s request for asylum and withholding of removal, finding that he was not credible. He was granted voluntary departure, which was to take place on or before May 16, 1997. Petitioner appealed from that decision. On May 30, 2000, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision, and granted petitioner voluntary departure within 30 days of the Board’s order. More than four years later, petitioner was still in the United States. Since being ordered to depart, petitioner had married and fathered two children. He sought to reopen his deportation proceedings, alleging changed country conditions and changed personal circumstances. On January 26, 2005, the BIA denied petitioner’s motion to reopen on the grounds that he had not established changed conditions in China. He now appeals that decision, arguing that the BIA failed properly to consider evidence of changed country conditions. For the reasons set forth below, we deny the petition for review. I. Background Petitioner is a citizen of the People’s Republic of China. According to petitioner’s application, while he was living in China, his girlfriend, Yan Wei Li, became pregnant with his child. The two were denied a marriage license because petitioner was only twenty-one years old and thus too young to marry legally. Their child, Yuan Hua Wang, was born on April 27, 1992. Petitioner claimed that under China’s family planning policies only legally married couples are permitted to have children, and as a result of these events he was ordered by the Chinese government to undergo a sterilization procedure. Petitioner subsequently fled to the United States in April 1994, apparently leaving Li and their child behind. He applied for asylum asserting that he had a well-founded fear of persecution. On April 16, 1997, the IJ denied petitioner’s request for asylum, based on his lack of credibility. The BIA affirmed the IJ’s decision on May 30, 2000, and, as the IJ had done, granted petitioner voluntary departure within 30 days of the Board’s order. Petitioner apparently did not appeal the BIA’s" }, { "docid": "22670047", "title": "", "text": "are not persuaded that this statement constituted “reliable, specific, objective” evidence compelling the well-founded fear finding urged by petitioner, Ramsameachire v. Ashcroft, 357 F.3d at 178. First, the statement, as it appears in the Country Report, identifies “women,” not “couples,” as the persons who face the noted practical dilemma. 2006 Country Report § 1(f). Second, the Country Report states that the problem arises “sometimes.” Id. Jian Hui Shao offered no evidence indicating that “sometimes” arose with sufficient frequency to establish a reasonable possibility of economic pressures being used to compel his sterilization on return to China. See INS v. Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. 1207. Finally, to the extent it is “forced” sterilizations that are recognized as a form of political persecution, 8 U.S.C. § 1101(a)(42), it is hardly apparent that the “pressures” giving rise to the reported dilemma would force persons generally, or Jian Hui Shao in particular, to submit to sterilization. See 2006 Country Report § 1(f) (detailing penalties “such as job loss or demotion, loss of promotion opportunity, expulsion from the party (membership in which was an unofficial requirement for certain jobs), and other administrative punishments, including in some cases the destruction of property”). Thus, assuming that, in some cases, severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization, we cannot conclude that the record evidence in this case compelled the BIA to find a reasonable possibility that Jian Hui Shao would face such severe economic compulsion upon his removal to China. Because we identify no merit in Jian Hui Shao’s claims of fact-finding error by the BIA, we deny his petition for review. 2. Ji Wen Shi a. Petitioner’s Challenge to the BIA’s De Novo Review of the Factual Record Is Either Without Merit or Un-preserved for Review Before challenging the BIA’s factual determination that he failed to demonstrate a well-founded fear of forced sterilization in China, Ji Wen Shi asserts that the BIA committed legal error by examining the record evidence de novo after the IJ had made findings in his favor. See Fen Yong Chen v." }, { "docid": "22670085", "title": "", "text": "requirement of 8 U.S.C. § 1101(a)(42) is not susceptible to a construction that categorically affords or denies refugee status to all Chinese nationals with more than one child. (2) To the extent the BIA has employed a three-step evidentiary analysis to facilitate its case-by-case identification of those aliens with more than one child who possess a well-founded fear of persecution on removal to China, we discern no legal error in that framework. Specifically, we do not understand the analysis to impose a heavier burden of proof for the demonstration of a well-founded fear than the “reasonable possibility” standard identified by the Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. 1207. (3) Because The Bia Did Not Overlook Relevant Evidence Or Commit Any Other Legal Error In Determining That None Of The Petitioners Now Before The Court Convincingly Demonstrated A Well-Founded Fear Of Forced Sterilization On Removal To China, We Review That Factual Finding Only For Substantial Evidence. As The Bia’s Finding Is Supported By Substantial Evidence In Each Case, Particularly On The Critical Point That No Petitioner Has Demonstrated A Reasonable Possibility That He Or She Will Face Forced Sterilization On Removal To China, We Identify No Error In Its Denials Of Asylum To Petitioners Jian Hui Shao And Ji Wen Shi Or In Its Denial Of Reopening Or Reconsideration To Petitioner Show Yung Guo. (4)With respect to petitioner Show Yung Guo, the BIA acted within its discretion in determining that she failed to adduce sufficient evidence to support reopening on the alternative ground that she qualified for relief from removal as an asylee refugee. Accordingly, the petitions for review are Denied. . Although we review the denial of Show Yung Guo's motion to reopen only for abuse of discretion, see infra at 168, our identification of substantial record evidence supporting the BIA's factual findings permits us readily to conclude that the agency's decision-making in this case was not arbitrary or capricious. . The 1999 Q & A Handbook states in relevant part: What birth-control measures are to be imposed upon birth of a first child/" }, { "docid": "22616636", "title": "", "text": "PER CURIAM. Jian Xing Huang petitions for review of a December 19, 2002 order of the Board of Immigration Appeals (“BIA”) that denied his application for asylum and withholding of removal, and in so doing, reversed the decision of the Immigration Judge (“IJ”). Huang argues that the BIA (i) applied the incorrect standard of review in reversing the IJ, and (ii) erroneously concluded that he had failed to establish a likelihood of future persecution based on his having had two children in this country, in violation of China’s family planning policy. Because the BIA employed the correct standard of review, and because we agree with the BIA that Huang did not meet his burden, we deny the petition. I Huang entered the United States illegally sometime in 1990. In 1998, he filed an application for asylum and withholding of removal based on his participation in the student democracy movement. While his application was pending, Huang met and married a Chinese citizen here in the United States. She soon gave birth to a daughter. In 1999, the INS served Huang with a notice to appear. When the hearing opened in the spring of 2000, Huang filed an amended asylum application citing his fear of future persecution, in particular, that he would be forcibly sterilized should he return to China. He cited Chinese family planning policy permitting only one child and the forcible sterilization of his sister-in-law. The hearing was adjourned to December 2000. By then, Huang’s wife was pregnant with their second child. The IJ granted Huang’s application for asylum and withholding of removal finding that it was “reasonable” for Huang to fear being subjected to forcible sterilization if removed to China. The INS argued on appeal to the BIA that Huang had not sustained his burden of showing a well-founded fear of future persecution, because the evidence of country conditions undermined the claim and because Huang had provided little evidence as to the circumstances surrounding the alleged forced sterilization of his sister-in-law. Moreover, there was no evidence in the record as to how (if at all) Chinese family planning policy" }, { "docid": "22670000", "title": "", "text": "fear of future persecution.” Id. at 501. In so ruling, we noted that, in Jian Xing Huang v. INS, this court had “expressed skepticism” as to whether an alien with two children born in the United States could demonstrate a well-founded fear of forced sterilization on removal to China “absent specific facts — beyond the general conditions in China — giving rise to his subjective fear.” Jian Hui Shao v. BIA 465 F.3d at 501 (citing Jian Xing Huang v. INS, 421 F.3d at 129). Nevertheless, because Jian Hui Shao’s children “were born in and live in China,” we considered the possibility that such circumstances might warrant a different assessment of the objective reasonableness of petitioner’s professed fear. Id. (emphasis added). Noting that the INA’s definition of a “refugee” did not clearly resolve the issue and that the BIA — the agency charged with the INA’s enforcement and thus entitled to deference with regard to the statute’s interpretation — had not previously considered the point, we decided to remand. See id. at 501-03 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 189-91 (2d Cir.2005)). In making that determination, we noted the far-reaching implications of any decision: Jian Hui Shao’s circumstances were shared by “innumerable potential asylum applicants” and the grant of asylum to all persons with more children than allowed by China’s family planning policies would raise “complicated” foreign and public policy questions. Id. at 502. Thus, we observed that “a precedential decision by the BIA— or the Supreme Court of the United States” was desirable to assure uniformity in such eases. Id. We anticipated that the remand question might not admit a single answer applicable throughout China. We observed that the BIA was “better prepared” than federal circuit courts “to evaluate whether different regions of China enforce divergent family planning policies and whether applicants from diverse locales should accordingly receive different treatment in asylum proceedings.” Id. 2. Ji Wen Shi a. Order of Removal In July" }, { "docid": "18360090", "title": "", "text": "In re Jian Hui Shao, No. [ A XX XXX XXX ] (B.I.A. June 28, 2004), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Feb. 27, 2003). Petitioner argued that he was entitled to asylum on the ground that he had fled China to escape its family planning program and is at risk of being forcibly sterilized if he returns to China because he and his wife have two children. The IJ, largely because he did not find Shao’s testimony credible, denied all his applications for relief and ordered him removed to China. The BIA affirmed without opinion as prescribed by 8 C.F.R. § 1003.1(e)(4), see generally Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir.2006) (describing BIA “streamlining” program), and this petition followed. Introduction In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. After being served a Notice to Appear by the Immigration and Naturalization Service (“INS”), he conceded removability as charged and applied for asylum and other relief. In his airport interview, his asylum application, and his testimony before the IJ, Shao stated that as a non-agricultural worker, he was prohibited by Chinese law from having more than one child. After he and his wife had a daughter, his wife had an intrauterine device (“IUD”) inserted to prevent another pregnancy. She was required to undergo regular examinations so that the government would know if she became pregnant. About two years after the IUD insertion, Shao’s wife paid a private doctor to remove the device. A few months later she became pregnant and, at some time near that of the conception, she missed her government examination. Shao stated that family planning authorities, desiring to abort his child, detained him and demanded to know his wife’s whereabouts. Authorities beat him when he refused to reveal his wife’s locations; she had fled to her mother’s house and subsequently to a mountainous, rural area. With the aid of a friend who worked for the police, Shao escaped from detention and fled to the home of a relative in a city from where" }, { "docid": "22670048", "title": "", "text": "the party (membership in which was an unofficial requirement for certain jobs), and other administrative punishments, including in some cases the destruction of property”). Thus, assuming that, in some cases, severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization, we cannot conclude that the record evidence in this case compelled the BIA to find a reasonable possibility that Jian Hui Shao would face such severe economic compulsion upon his removal to China. Because we identify no merit in Jian Hui Shao’s claims of fact-finding error by the BIA, we deny his petition for review. 2. Ji Wen Shi a. Petitioner’s Challenge to the BIA’s De Novo Review of the Factual Record Is Either Without Merit or Un-preserved for Review Before challenging the BIA’s factual determination that he failed to demonstrate a well-founded fear of forced sterilization in China, Ji Wen Shi asserts that the BIA committed legal error by examining the record evidence de novo after the IJ had made findings in his favor. See Fen Yong Chen v. BCIS, 470 F.3d 509, 513-14 (2d Cir.2006) (observing that BIA is not permitted to engage in de novo review of an IJ’s factual findings); 8 C.F.R. § 1003.1(d)(3)(iv) (stating that BIA will not engage in fact-finding, “[e]xcept for taking administrative notice of commonly known facts such as current events or the contents of official documents”); id. § 1003.1(d)(3)(i) (stating that BIA will review IJ findings of fact only to determine clear error). We disagree. First, we observe that the BIA did not conduct de novo review of the IJ’s critical finding of fact, i.e., that Ji Wen Shi had testified credibly to a fear of forced sterilization on removal to China. Rather, on initial appeal from the grant of relief in favor of Ji Wen Shi, the BIA made a legal determination that, while such credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear. This comports with our decision in Ramsa-meachire v. Ashcroft, which states that the subjective element of" }, { "docid": "22669996", "title": "", "text": "policy implicated by the births at issue, (2) established that government officials would view the births as a violation of the policy, and (3) demonstrated a reasonable possibility that government officials would enforce the policy against petitioner through means constituting persecution? Because we identify no legal error in this evidentia-ry framework and because substantial evidence supports the BIA’s findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable, we deny these petitions for review. I. Background Athough the three petitions before us present a common issue, they do so in different factual and procedural contexts that we outline briefly at the outset: (1) in Jian Hui Shao’s case, the BIA reviewed (a) on direct appeal (b) an order of removal (c) against a male petitioner generally found not credible except for the fact that (d) he had fathered two children in China before fleeing to the United States; (2) in Ji Wen Shi’s case, the agency reviewed (a) on direct appeal (b) a grant of relief from removal (c) to a credible male applicant (d) who had married and fathered two children in the United States after fleeing China; and (3) in Show Yung Guo’s case, the agency considered (a) a motion to reopen (b) by a woman previously found not credible except for the fact that (c) she had given birth to two children, one in China and one in the United States, but who (d) now offered various documents from family planning authorities in her native province and town to support a claim of changed country conditions giving rise to a fear of future persecution based simply on the number of her children. The BIA’s initial rulings denying relief in each case prompted petitions for review in this court, each of which resulted in remands, in two cases by court order, see Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir.2006); Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and in the case of Ji Wen Shi by stipulation of the" }, { "docid": "22669995", "title": "", "text": "second child born in United States). The BIA has determined that the question admits no categorical answer, largely because of local variations in Chinese officials’ understanding and enforcement of their nation’s birth control policies. Thus, the Board has declined to construe the statutory term “refugee” to exclude or to include all Chinese nationals who have fathered or given birth to more than one child. Rather, it has determined that a case-by-case review is necessary to identify which Chinese nationals with two or more children demonstrate a fear of future persecution that is both subjectively genuine and objectively reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005) (noting subjective and objective components of well-founded fear claim); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (same). No party before the court on these petitions challenges this flexible construction of the statute. Instead, each petitioner faults the BIA’s analysis of the evidence in his or her particular case, an analysis generally in formed by a three-part inquiry: has petitioner (1) identified the government policy implicated by the births at issue, (2) established that government officials would view the births as a violation of the policy, and (3) demonstrated a reasonable possibility that government officials would enforce the policy against petitioner through means constituting persecution? Because we identify no legal error in this evidentia-ry framework and because substantial evidence supports the BIA’s findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable, we deny these petitions for review. I. Background Athough the three petitions before us present a common issue, they do so in different factual and procedural contexts that we outline briefly at the outset: (1) in Jian Hui Shao’s case, the BIA reviewed (a) on direct appeal (b) an order of removal (c) against a male petitioner generally found not credible except for the fact that (d) he had fathered two children in China before fleeing to the United States; (2) in Ji Wen Shi’s case, the agency reviewed (a) on direct appeal" } ]

[ { "docid": "12988449", "title": "", "text": "PER CURIAM. An earlier judgment of this court affirming the denial by the trial court of a petition for habeas corpus was vacated by the United States Supreme Court and the case was “remanded to the United States Court of Appeals [for the Fifth Circuit] for reconsideration in light of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 246.” Lyles v. Beto, 379 U.S. 648, 85 S.Ct. 613, 13 L.Ed.2d 552. We have reconsidered this case in light of Massiah and in light of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. We conclude that the opinion of the Supreme Court in Johnson and Cassidy, Petitioners, v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, rules this case. The trial in this case began long before June 13, 1966, the cut off date now announced by the Supreme Court for the application of the requirement of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The only substantial issue left in this case being the question whether the eliciting of a voluntary confession from the appellant while in custody in the police station at a time when he had neither counsel nor had been advised of his right to counsel deprived him of his constitutional rights under the Sixth Amendment, that issue has now been foreclosed. The judgment of the trial court is affirmed." } ]

[ { "docid": "5932292", "title": "", "text": "date of the Supreme Court ruling in Massiah, the issue presented is whether Massiah should be given complete retroactive application. Basing our decision on the extent which the condemned practice infects “the integrity of the truth-determining process,” Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882 (1964), and weighing such finding “against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice,” Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), we agree with the other circuits which have faced the question of Massiah’s retroactivity, and hold it to be not retroactive. United States ex rel. Romano v. Fay, 360 F.2d 389 (2nd Cir. 1966), cert, denied sub nom. Romano v. Follette, 385 U.S. 1020, 87 S.Ct. 725, 17 L.Ed.2d 557 (1966); Lyles v. Beto, 363 F.2d 503 (5th Cir. 1966). Appellant’s constitutional challenge with regard to the admission of the confession of Braxton Anderson, appellant’s uncle, at their joint trial in 1966 is predicated on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that admission into evidence of a co-defendant’s confession at a joint trial in which the co-defendant did not take the stand denied the defendant his constitutional right of'confrontation. In the present case appellant did not move for a severance in the trial court, despite the fact that he was informed prior to trial of the existence of his uncle’s statement. In Bruton a severance was requested and denied. This case is also distinguishable from Bruton, because a third co-defendant took the stand, admitted his part in the crime and implicated appellant. This co-defendant was subjected to extensive cross-examination by counsel for appellant, and it was at that time that the state introduced the statement of appellant’s uncle. It is also important that unlike Bruton appellant’s name was deleted from the statement. In light of the foregoing it is the conclusion of this court that the rule set forth in Bruton v. United States, supra," }, { "docid": "213433", "title": "", "text": "to the rules governing the admissibility of involuntary statements, however, this distinction has no constitutional significance. Iverson v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973); United States v. Marcey, 142 U.S.App.D.C. 253, 440 F.2d 281, 284 (1971); Jones v. United States, 111 U.S.App.D.C. 276, 280, 296 F.2d 398, 402 (1961), cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed. 406 (1962). See also Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; Gladden v. Unsworth, 396 F.2d 373, 375-376 (9th Cir. 1968). Also the federal statute that now applies to the admissibility of confessions speaks in terms of “any self-incriminating statement.” Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, tit. II, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501 (1976). . “Since Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). See also Ziang Sung Wan v. U. S., 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed.2d 131 (1924). . Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). Accord, United States v. Bernett, 161 U.S.App.D.C. 363, 386, 495 F.2d 943, 966 (1974); Hunter v. Swenson, 372 F.Supp. 287 (W.D.Mo.), aff’d, United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967); Harris v. Beto, 367 F.2d 567 (5th Cir. 1966); Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136 (1964), cert. denied, 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822 (1965). . Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). ." }, { "docid": "8674561", "title": "", "text": "Appellant had complained to Woody of alleged police brutality, and Woody suggested that appellant see his family doctor. . Also counsel was confident that the court’s refusal to exclude the entire confession as a fruit of an illegal search would he reversed. . Accord, e. g., Law v. State, 165 Tex.Cr. R. 542, 309 S.W.2d 443 (1958); Williams v. State, 164 Tex.Cr.R. 347, 298 S.W.2d 590, cert. denied, 355 U.S. 850, 78 S.Ct. 65, 2 L.Ed.2d 52 (1957) ; Vaughn v. State, 145 Tex.Cr.R. 128, 166 S.W.2d 139 (1942). . The court set forth the procedure to be followed in future cases when the volun-tariness of a confession is contested in order to comply with Jackson v. Denno. Subsequently, as a part of a complete revision of the Texas Code of Criminal Procedure, the state legislature adopted the procedure outlined in Lopez. See Vernon’s Ann.Tex.Code Crim.P.Ann. art. 38.-22 (Supp.1968). . Lopez v. State, supra, changed this rule so that a defendant in Texas may now take the stand for the limited purpose of contesting the voluntariness of his confession without waiving his privilege against self-incrimination in regard to other matters. See also Tex.Code Crim.P.Ann. art. 38.22 (Supp.1968). . 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). . This court previously has held Jackson v. Denno to be retroactive. See Smith v. Texas, 395 F.2d 958 (5th Cir. 1968) ; Burns v. Beto, 371 F.2d 598 (5th Cir. 1966). See also Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ; Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968) ; Gladden v. Unsworth, supra; Schmear v. Gagon, 396 F.2d 786, 787 (7th Cir. 1968) ; Lundberg v. Buchkoe, 389 F.2d 154 (6th Cir. 1968) ; Johnson v. Bennett, 386 F.2d 677 (8th Cir. 1967) ; Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966). . The habeas court, relying on Henry, rested its decision squarely on the choice made by defense counsel. In Henry the Supreme Court did" }, { "docid": "23178882", "title": "", "text": "F.2d at 1268; Frye v. United States, 293 F. at 1014. While it is a truism that every useful new development must have its first day in court, see United States v. Stifel, 433 F.2d at 438, expert testimony on a critical fact relating to guilt or innocence is not admissible unless the principle upon which it is based has attained general acceptance in the scientific community and is not mere speculation or conjecture. We are not convinced, on the present state of the record, that ion microprobic analysis of human hair has yet reached the level of general acceptance in its field, or that the experiments conducted in this case have been shown to be sufficiently reliable and accurate, to provide an acceptable basis for expert identification in a criminal trial. The final issue raised by Appellant is the constitutionality of 18 U.S.C. § 844(f), malicious destruction by means of an explosion of an institution receiving federal financial assistance. We affirm the constitutionality of § 844(f) as applied to the Planned Parenthood Association for the reasons stated in the District Court’s opinion. United States v. Brown, 384 P.Supp. 1151 (E.D.Mich.1974). The judgment of the District Court is reversed. . Appellant was also prosecuted in state court, for murder and assault with intent to murder, without success. . For a partial list of these decisions see Miranda v. Arizona, 384 U.S. 436, 507 & n. 3, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Harlan, J., dissenting) (1966); Spano v. New York, 360 U.S. 315, 321 n. 2, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). See generally Developments in the Law of Confessions, 79 Harv.L.Rev. 935, 962-81 (1966). A number of rationales have been offered for excluding involuntary confessions. See generally 79 Harv.L.Rev. at 964-74. In Stein v. New York, 346 U.S. 156, 192, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), the Supreme Court indicated that coerced confessions are excluded from evidence because of their inherent unreliability. In Rogers v. Richmond, 365 U.S. 534, 542-44, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the Supreme Court departed from unreliability as a reason for" }, { "docid": "6151314", "title": "", "text": "Escobedo v. Illinois, 378 U.S. 478, 489, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964), quoting 8 Wigmore, Evidence (3d ed. 1940) 309, and because, more intangibly, law enforcement authorities must not, in their attitudes and actions, treat criminal defendants as their prey or as a source of evidence to be exploited. See generally Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). Relatedly, the self-incrimination clause reflects our belief that requiring a person to participate in his own condemnation, and denying him even the right to remain defiantly silent, robs him of. a dignity that even an accused criminal must be allowed to preserve. With these policies in mind, then, we must review the circumstances sur rounding Jurek’s confessions. “The . voluntariness of a confession turns on the effect of the totality of the circumstances on the defendant’s will.” United States v. Ballard, 586 F.2d 1060, 1062 (5th Cir. 1978). We are, according to the Supreme Court, under a “duty [as] an appellate court . ‘to examine the entire record and make an independent determination of the ultimate issue of voluntariness,’ ” Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976), quoting Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); see also Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 2417, 57 L.Ed.2d 290 (1978); in other words, we may overturn the district court’s conclusion on this issue even if it is not clearly erroneous. And when we examine the record, we can only conclude that Jurek’s confessions were involuntary. To begin with, a person like Jurek, whose verbal intelligence is limited, is less likely to be able to understand his right to remain silent. He may also be unable to insist effectively that that right be observed. For these reasons, the Supreme Court has repeatedly recognized that a confession made by such a person is more likely to be involuntary. See, e. g., Sims" }, { "docid": "10752997", "title": "", "text": "time when he had no attorney, had not been advised of his rights to counsel and to remain silent. 4. He did not have the opportunity to cross examine the accomplice whose incriminating statements were admitted into evidence. The district court denied relief based upon a transcript of appellant’s trial in state court. The admission of the photograph of the deceased presents no federal constitutional question. Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921; Nees v. Culbertson, 5th Cir. 1969, 406 F.2d 621. Nor does the court’s failure to instruct the jury on lesser included offenses present a federal constitutional question. Higgins v. Wainwright, 5th Cir. 1970, 424 F.2d 177; Flagler v. Wainwright, 5th Cir. 1970, 423 F.2d 1359. As regards the incriminating statement made by appellant, the state trial court found that the statement was not taken under circumstances to render it involuntary. Appellant’s trial occurred prior to the date the United States Supreme Court rendered its opinion in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; therefore the Miranda, standards are not applicable to this case. Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. At appellant’s trial the investigator who testified as to the statements made by appellant also testified that he informed appellant of his rights to counsel and to remain silent and that anything he said could be used against him. The district court found that the statements were not involuntary. We perceive no clear error in this finding. Nor do we perceive clear error in the district court’s findings regarding appellant’s fourth contention. In response to interrogatories propounded by the district court, appellant stated that the accomplice was not called as a witness because counsel made no attempt to call him. Nothing in the record shows that counsel or the appellant attempted to have the accomplice testify. The district court found this to be a matter of trial tactics, not a denial of a constitutional right. We agree. The judgment" }, { "docid": "2618287", "title": "", "text": "court, outside the presence of the jury, as to its voluntariness, Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. We begin with the proposition that Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not apply in this case with respect to the right to counsel and to the warning, the trial having taken place before June 13, 1966. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. See Marion v. Harrist, 5 Cir., 1966, 363 F.2d 139, another Texas death case involving the same issue. However, the teachings of Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 are applicable inasmuch as the trial took place after June 22, 1964, the date of the Escobedo decision. Johnson v. State of New Jersey, supra; Marion v. Harrist, supra. Our conclusion is that, although appellant falls into the Escobedo category as being one particularly suspected, he was “* * * effectively warned of his absolute Constitutional right to remain silent” prior to giving the written confession (the only confession or admission in issue). Escobedo, 378 U.S. at p. 491, 84 S.Ct. 1758. He was not offered counsel as Miranda would now require, but unlike Escobedo, appellant did not request nor was he denied counsel. His confession is thus not foreclosed by the Escobedo doctrine. Also, we agree with the District Court that there was probable cause for the police to believe that appellant had committed the crime and that this was sufficient cause for an arrest. We, therefore, are not faced with a case where the confession is the product or fruit of an illegal arrest and Collins v. Beto, 5 Cir., 1965, 348 F.2d 823, on which appellant relies, is distinguishable. Appellant argues that his mental condition was such that he was not competent to confess the crime but he did not make out such a case. As stated, there is no evidence of any coercion or pressure from the interrogators, or that appellant was" }, { "docid": "973959", "title": "", "text": "police, than his own voluntary admission. We are fully aware of the fact that federal courts are not commissioned to try state cases de novo. Our review is solely for the purpose of detecting violations of federal constitutional standards. In reaching a decision we do not weigh the evidence nor do we consider “gossamer possibilities of prejudice to a defendant”, but we cannot close our eyes to the importance of serious constitutional challenges to evidence which has a substantial bearing oh the issue of guilt or innocence. In short the relinquishment of a constitutional right should not be lightly inferred. Thus the decision of the district court granting the writ must be affirmed, either on the ground that Brown was in custody when he made the incriminating statement and so was entitled to the Miranda warnings or on the alternative ground that the statement was not voluntarily made. Under either alternative it should not have been admitted at Brown’s trial. The state is granted 90 days from the date of the issuance of the mandate of this court or from the final disposition of the case by the Supreme Court in which to initiate a new trial of the appellant or to release him into the custody of federal authorities. Judgment affirmed. . The search in question occurred prior to the Miranda decision rendered on June 13, 1966, but Brown’s trial was held sometime after that decision. In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) the Supreme Court held that Miranda applied to all cases in which trial began after the Miranda decision was announced. See also Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972) [1972] in which this court concluded : Even though the confession was made May 4, 1966, five weeks before the date Miranda was decided, which was June 13, 1966, the decision applies because Sanchez’s trial commenced April 10, 1967, well after the date of the decision. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). . Brown’s conviction was affirmed by the" }, { "docid": "2935513", "title": "", "text": "fear in petitioner as immediately produced the “confession.” . Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). . 358 F.2d 259 (5th Cir. 1966) (per curiam). . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The trial in the case subíndice was held prior to the decision in Miranda, which is prospective only in application. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). . 384 U.S. at 479, 86 S.Ct. at 1630. . Tyler v. Beto, 391 F.2d 993, 995 (5th Cir. 1968); Rabat v. Bennett, 365 F.2d 698, 712 (5th Cir. 1966); Scott v. Walker, 358 F.2d 561, 571 (5th Cir. 1966). . 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (U.S. June 3, 1968). . See Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (U.S. June 3, 1968). Although Witherspoon does not touch upon the legality of detention as such, we hold that this constitutional question is a proper one for consideration on habeas corpus. Cf. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (May 20, 1968); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (U.S. May 20, 1968). . Shimniok v. State, 197 Miss. 179, 19 So. 2d 760 (1944); Borowitz v. State, 115 Miss. 47, 75 So. 761 (1917). . Mississippi’s coram nobis statute, Miss. Code Ann. § 1992.5 (1956), apparently provides an adequate procedure for determining the Witherspoon question. See 37 Miss.L.J. 9, 22-24 (1965). Of course, if the Mississippi courts do not provide adequate relief, Appellant can return to the federal courts. Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731 [No. 25075]. . See Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731 [No. 25075] ; Moore v. Dutton, 5th Cir. 1968, 396 F.2d 782; State of Texas v. Payton, 390 F.2d 261 (5th Cir. 1968); Brent v. White, 5th Cir. 1968, 398" }, { "docid": "6776225", "title": "", "text": "no basis for reexamining the presumptively correct State determination of the facts. See 28 U.S.C. § 2254 (d) (Supp. Ill 1965-1967); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As indicated previously, there is more than sufficient support for Judge Davidson’s finding that beyond a reasonable doubt no beatings, threats or coercion occurred here. The legal issue, as the Supreme Court has frequently instructed “is whether the defendant’s will was overborne at the time he confessed.” See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). If compulsion, mental or physical, is a propelling force inducing a confession, then such confession shall be invalidated. See Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). It appears from the record that petitioner may not have been warned prior to his confession of his rights to remain silent and to counsel. We recognize that failure to so advise an accused is a factor to be taken into account in passing on the voluntariness of a confession. However, while the voluntariness test “has become increasingly meticulous through the years,” Johnson v. New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772, 1779, 16 L.Ed. 2d 882 (1966), this failure alone can hardly be sufficient cause for holding his confession involuntary. See United States v. Hughes, 389 F.2d 535 (2d Cir. 1968). Second, petitioner asserts that he was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Johnson v. New Jersey, 384 U.S. at 732-33, 86 S.Ct. 1772, the Supreme Court permitted, but did not require Miranda to be applied retroactively by the states. New York does not apply Miranda retroactively. See People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550 (1966); People v. Carraway, 19 N.Y.2d 767, 279 N.Y.S.2d 524, 226 N.E.2d 312 (1967). Thus, this issue is foreclosed to petitioner whose trial ended in 1953. Petitioner’s assertion that New York's decision not to apply Miranda retroactively creates an ex post facto" }, { "docid": "213434", "title": "", "text": "of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). See also Ziang Sung Wan v. U. S., 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed.2d 131 (1924). . Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). Accord, United States v. Bernett, 161 U.S.App.D.C. 363, 386, 495 F.2d 943, 966 (1974); Hunter v. Swenson, 372 F.Supp. 287 (W.D.Mo.), aff’d, United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967); Harris v. Beto, 367 F.2d 567 (5th Cir. 1966); Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136 (1964), cert. denied, 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822 (1965). . Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). . Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952); Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). . Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). . See, e. g., Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968) (confession must be the “product of his free and rational choice”); Haynes v. Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963) (“product of a free and unconstrained will”); Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963) (“product of a rational intellect and a free will”); Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (“freely self-determined”); Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (“expression of free choice”); Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921," }, { "docid": "8674562", "title": "", "text": "voluntariness of his confession without waiving his privilege against self-incrimination in regard to other matters. See also Tex.Code Crim.P.Ann. art. 38.22 (Supp.1968). . 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). . This court previously has held Jackson v. Denno to be retroactive. See Smith v. Texas, 395 F.2d 958 (5th Cir. 1968) ; Burns v. Beto, 371 F.2d 598 (5th Cir. 1966). See also Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ; Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968) ; Gladden v. Unsworth, supra; Schmear v. Gagon, 396 F.2d 786, 787 (7th Cir. 1968) ; Lundberg v. Buchkoe, 389 F.2d 154 (6th Cir. 1968) ; Johnson v. Bennett, 386 F.2d 677 (8th Cir. 1967) ; Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966). . The habeas court, relying on Henry, rested its decision squarely on the choice made by defense counsel. In Henry the Supreme Court did not rule on whether the defense counsel had bypassed an available procedure, but remanded the case to the state court for a determination of that issue. The bypass in Henry was the failure to make a contemporaneous objection to illegally obtained evidence. A constitutional procedure was available. Evidence subsequently developed indicated that the defense counsel knew of the procedure’s existence. See the subsequent history of Henry in the Mississippi courts at 198 So.2d 213 (1967) and 202 So.2d 40 (1967), cert. denied, 392 U.S. 931, 88 S.Ct. 2276, 20 L.Ed.2d 1389 (1968). As previously noted defense counsel Woody had no such knowledge. See text preceding note 12 supra. . We are aware of the cases east in the mold suggested by the dissenting opinion of Justice Harlan in Fay v. Noia, 372 U.S. at 472, 83 S.Ct. at 866, 9 L.Ed.2d at 888, that a defendant may not constitutionally be required to elect between two constitutional rights. See, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ; Jackson v." }, { "docid": "973960", "title": "", "text": "of this court or from the final disposition of the case by the Supreme Court in which to initiate a new trial of the appellant or to release him into the custody of federal authorities. Judgment affirmed. . The search in question occurred prior to the Miranda decision rendered on June 13, 1966, but Brown’s trial was held sometime after that decision. In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) the Supreme Court held that Miranda applied to all cases in which trial began after the Miranda decision was announced. See also Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972) [1972] in which this court concluded : Even though the confession was made May 4, 1966, five weeks before the date Miranda was decided, which was June 13, 1966, the decision applies because Sanchez’s trial commenced April 10, 1967, well after the date of the decision. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). . Brown’s conviction was affirmed by the Texas Court of Criminal Appeals, Brown v. State, 437 S.W.2d 828 (Tex.Cr.App. 1968). Certiorari was denied by the Supreme Court, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782 (1969). Brown sought habeas corpus relief in the Texas courts without success. . Actually this is the second time this case has been before us. The district court initially denied the writ on a different ground. Brown appealed, and, though we affirmed the district court’s ruling on that ground, we remanded for a determination of the confession issue which the district court had not orig inally considered. Brown v. Beto, 439 F.2d 259 (5th Cir. 1971). The decision of the district court after remand is reported as Brown v. Beto, 338 F.Supp. 1358 (S.D.Texas 1971). . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). . See United States v. Phelps, 443 F.2d 246 (5th Cir. 1971); United States v. Akin, 435 F.2d 1011 (5th Cir. 1970); United States v. Montos, 421 F.2d 215 (5th Cir. 1970); and Windsor v." }, { "docid": "2618286", "title": "", "text": "as to what he killed her with and he said, “With a water bottle or a water pitcher.” Appellant was then placed in jail. Some twelve hours later he was removed from his cell to an interrogation room where he was interviewed by the two detectives who had investigated the murder at the home and who had issued the pickup order. He immediately advised them that he had killed his wife. The total conversation lasted for about ten minutes. He signed a written statement of confession after a stenographer was called in to prepare it. Prior to giving the statement to the stenographer, appellant was advised that he did not have to make a statement, but that if he did it might be used in evidence against him. There is no evidence of any coercion whatsoever. The detectives who took the statement testified that they did not know of his earlier oral statement to the officers at the time of the arrest. The statement was admitted on the trial after a preliminary inquiry by the court, outside the presence of the jury, as to its voluntariness, Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. We begin with the proposition that Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not apply in this case with respect to the right to counsel and to the warning, the trial having taken place before June 13, 1966. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. See Marion v. Harrist, 5 Cir., 1966, 363 F.2d 139, another Texas death case involving the same issue. However, the teachings of Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 are applicable inasmuch as the trial took place after June 22, 1964, the date of the Escobedo decision. Johnson v. State of New Jersey, supra; Marion v. Harrist, supra. Our conclusion is that, although appellant falls into the Escobedo category as being one particularly suspected, he was “* * * effectively" }, { "docid": "2122031", "title": "", "text": "84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3rd Cir. 1966), but also upon the additional authorities cited immediately hereafter, that failure of the trial court to conduct an initial, independent hearing, out of the presence of the jury, to determine the admissibility of a confession by resolving the question of voluntariness is a denial of due process within the intendment of the Fourteenth Amendment. Boles v. Stevenson, 379 U.S. 43, 45, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964); United States ex rel. Dickerson v. Rundle, 238 F.Supp. 218, 220 (E.D.Pa.1965); Mitchell v. Stephens, 353 F.2d 129, 144 (8th Cir. 1965) cert. denied 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966); Trotter v. Stephens, 241 F.Supp. 33, 46 (E.D.Ark.1965); Stewart v. Stephens, 244 F.Supp. 982, 993 (E.D.Ark.1965). However, as to the fifth point urged by respondent, that since a new trial is not required the decision of Miranda v. State of Arizona, supra, is not applicable, I am not convinced that this is so. Miranda must be followed in a retrial held after June 13, 1966 even though the original trial was held before that date. Gibson v. United States, 363 F.2d 146, 148 (5th Cir. 1966). This being so, it appears that the State of New Jersey would be bound to adhere to the dictates of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda in the event of a new hearing for petitioner in regard to the involuntariness claim. “Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the non-retroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.” Johnson v. State of New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882 (1966). FURTHER RELIEF SOUGHT BY PETITIONER Petitioner seeks alternatively the following: (1) a new trial because he asserts that the trial court prejudicially influenced the jury by its" }, { "docid": "15627515", "title": "", "text": "federal statute which now deals with the admissibility of confessions embraces “any self-incriminating statement.” Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No.90-351, tit. II, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501(e) (1970), quoted infra at note 89. . Miranda v. Arizona, supra note 10, 384 U.S. at 444, 86 S.Ct. 1602, 1612. . Id. . Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Johnson v. New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). . Id. . See, e. g., United States v. Robinson, supra note 15, 142 U.S.App.D.C. at 47-48, 51 & n. 8, 439 F.2d at 557-558, 561 & n. 8; Eisen v. Picard, 452 F.2d 860, 862 (1st Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972); Gilpin v. United States, 415 F.2d 638, 639-640 (5th Cir. 1969); Gladden v. Unsworth, supra note 22, 396 F.2d at 379. . Thus, in the case at bar, the District Court rejected the contention of the Government that repetition of Miranda warnings to Bernett and obtaining his consent to speak while at the stationhouse sufficed to show that the statement made there to Officer Richardson was voluntary. See, e. g., United States v. Robinson, supra note 15, 142 U.S.App.D.C. at 52, 439 F.2d at 562; Gilpin v. United States, supra note 27, 415 F.2d at 642; United States v. Guaydacan, 470 F.2d 1173, 1174 (9th Cir. 1972). . See Harris v. New York, supra note 18, 401 U.S. at 224, 91 S.Ct. 643. . Blackburn v. Alabama, 361 U.S. 199, 206, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Fikes v. Alabama, 352 U.S. 191, 197, 77 S. Ct. 281, 1 L.Ed.2d 246 (1957). . Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). . Blackburn v. Alabama, supra note 30, 361 U.S. at 207, 80 S.Ct. 274. . See Part III(G), infra. . Mergner v. United States, 79 U.S.App.D.C. 373, 147 F.2d 572, cert. denied, 325 U.S. 850, 65 S.Ct. 1085, 89 L.Ed. 1971" }, { "docid": "933832", "title": "", "text": "on voluntariness under the retroactive requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964). The lower state court and the Supreme Court of Pennsylvania have rejected the coerced confession claim. We believe appellant has exhausted the state remedies on this issue and that it is ripe for consideration by the federal courts. The Pennsylvania Supreme Court dismissed appellant’s collateral attack on the introduction of his confession on three grounds: (1) Since the trial in this case preceded Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the absence of counsel at the time of appellant’s interrogation by the police did not invalidate the confession because of the non-retroactivity of these decisions: Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); (2) The record in the case did not support any finding of coercion under the pre-Escobedo and pre-Miranda standards of Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), so as to taint the confession; and (3) Because no objection was made at trial to the introduction of the confession, the state contemporaneous objection rule precluded appellant’s collateral challenge: Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966). We need not dispute the correctness of the State Supreme Court’s determination to conclude that appellant may, under federal constitutional standards, challenge the voluntariness of the confession under Jackson v. Denno, supra, where he has not waived his right to do so. Fay v. Noia, supra 372 U.S. at 428, 83 S.Ct. 822, 9 L.Ed.2d 837. We have so held on- a number of occasions, United States ex rel. Snyder v. Mazurkiewicz, 413 F.2d 500 (3d Cir.1969); United States ex rel. Gockley v. Myers, 378 F.2d 398 (3d Cir.1967); United States ex rel. Dickerson v. Rundle, 363 F.2d 126 (3d Cir.1966), even where the defendant’s counsel failed to object to the admission of the confession, Snyder, supra, or expressly declined to object" }, { "docid": "16949337", "title": "", "text": "advised of his right to appeal by his court-appointed counsel. The district court rejected both petitioner’s claim that he was denied due process when his confession was admitted and that he was denied effective counsel when his appointed counsel failed to advise him of his right to appeal. We hold that a hearing should have been granted on both issues. With regard to the confession’s admissibility, the respondent here contents itself with pointing out that the trial in the present case occurred before June 24, 1964, the date of decision of Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and that therefore the rule in that case is unavailable to the petitioner. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. This is correct so far as it goes. But while Escobedo and Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, end one era and start another, their “nonretroactivity * * * does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve” long before those decisions. Davis v. State of North Carolina, 1966, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. Our Constitution is a continuum. Such a voluntariness issue is presented by the petition in the present case, and the question of whether the confession was improperly used should be settled by study of the trial transcript (not now in the record here) and by a hearing if necessary. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L. Ed. 469, reh. den., Speller v. Allen, 344 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370 (1953). Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Stickney v. Ellis, 5 Cir. 1961, 286 F.2d 755, cert. denied 365 U.S. 888, 81 S.Ct. 1041, 6 L.Ed.2d 198 (1961), reh. denied, 366 U.S. 933, 81 S.Ct. 1653, 6 L.Ed.2d 392 (1961); Johnson v. Ellis, D.C.Tex. 1961," }, { "docid": "8892211", "title": "", "text": "on November 15, 1962, at about 9:50 p. m. No contention is raised concerning the legality of the arrest, which was executed without a warrant upon information from an accomplice. While in custody and after interrogation, Graves signed a statement which describes the circumstances under which the victim was shot while attempting to resist the robbery. Graves says that he gave the confession at 2 a. m. on November 16, about 4 hours after his arrest. Police officers testified that he confessed much sooner than that. With regard to the Escobedo contention, it is undisputed that the confession was made without Graves having been advised by an attorney and without having been informed by police of his right to counsel. Graves claims that he requested counsel, which is denied by the police. The district court did not resolve that factual question but instead relied on Collins v. Beto, 348 F.2d 823 (5th Cir. 1965), to hold that, in any event, a request for counsel was not required to effectuate the holding of Escobedo. The court concluded that Graves was denied his constitutional right to the assistance of counsel at a critical stage of the prosecution because he was not affirmatively informed of his right to consult with an attorney. We may quickly dispose of this point because subsequent to the habeas hearing below, the Supreme Court held that Escobedo will not be applied retroactively. It therefore does not govern the case at bar since Graves’ trial commenced on June 24, 1963, which was prior to the date of the Escobedo decision. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). It should be noted, however, that while Escobedo provided new safeguards against the use of unreliable statements at trial, its nonretroactivity does not preclude persons, like Graves, whose trials were already completed, “from invoking the same safeguards as part of an involuntariness claim.” Id. at 730, 86 S.Ct. at 1779. See also Davis v. State of North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). For an understanding of" }, { "docid": "11659046", "title": "", "text": "88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1968), where the court said: “The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.” For the foregoing reasons, the order of the District Court, dismissing the November 1966 petition for a writ of habeas corpus, will be vacated and the case will be remanded for proceedings in accordance with the foregoing opinion. . The findings and conclusions in the opinion after the hearing on the motion for new trial on the ground of newly discovered evidence are reported in State v. Johnson, 63 N.J.Super. 16, 163 A.2d 593 (1960) , aff’d 34 N.J. 212, 168 A.2d 1 (1961) —which opinion also discusses the evidence at that hearing — , cert den. 368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195 (1961). . For the principal prior decisions involving appellants (called “a battery of collateral attacks” by the Supreme Court of the United States in Johnson v. State of New Jersey, 384 U.S. 719, 726, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)), see State v. Johnson, 43 N.J. 572, 573, 206 A.2d 737 (1965), at footnote 1 on p. 739. . The affidavits appear at pp. 365-385 of the Transcript of Record in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, Oct. Term 1965, Supreme Court of the United States. . The court held that further consideration on that appeal of the issue of the voluntariness of appellants’ confessions by it was precluded by a state procedural rule. . The appellants made consistent objection to the use of the confessions as a whole (310a, 378a, 403a, 428a & 606a of Joint Appendix, Supreme Court of New Jersey, Docket 2839 — State of New Jersey v. Johnson et" } ]

[ { "docid": "794057", "title": "", "text": "requiring the insurer to defend suits against the insured, do not impose a duty to advance fees. However, all but one of the cited cases can be distinguished. The one case in point construed the same policy on the same issue. The court held for MGIC and dismissed the suit for failure to state a claim. Clandening v. MGIC, C.D.Cal., Civil No. 83-2432-LTL, (May 23, 1983, Lydick, J.). The Clandening court, however, had no occasion to consider the arguments and cases presented by plaintiffs herein. The Clandening plaintiffs raised only token opposition (one page) to MGIC’s motion to dismiss, and the court relied on section 5(c) of the policy, quoted above, without mentioning (in transcript of oral ruling, MGIC’s Exhibit N) the arguably conflicting section 1(d). From the record it appears that the reasoning of the Clandening court was cursory and incomplete. MGIC has a duty to fund the insureds’ defense. As noted, section 5(c) of the policy conflicts with section 1(d) defining “loss”, creating a fatal ambiguity which is construed against the drafter-insurer, even though the insureds were presumably sophisticated corporate directors and officers. A directors’ and officers’ policy which did not provide, in the event of suit, for payment of the insureds’ attorneys’ fees until final judgment — when such suits can last for years and cost astronomical sums to defend — would be virtually impossible to sell to reasonable officers and directors, for it would not truly protect the insureds from financial harm caused by suits against them. An insurance policy should be construed according to the reasonable expectations of the insured. Sturla, supra. II The next issue is whether MGIC must pay for multiple losses, or whether there was only one loss caused by many negligent acts. The policy provides $1 million of coverage per director or officer for losses they caused, subject to a ceiling of $1 million per loss. Only if there were multiple losses would MGIC be liable for multiple millions in coverage. In the underlying cases herein, the directors and officers allegedly committed such distinct negligent acts as: (1) voting at separate" } ]

[ { "docid": "4765006", "title": "", "text": "with actual dishonest purpose and intent were material to the cause of action so adjudicated. D & 0 Policy, Section 3(A)(5) (emphasis added). Finally, the D & 0 policy contains the following provision: SECTION 5 COSTS, CHARGES AND EXPENSES (A) No costs, charges and expenses shall be incurred or settlements made without the Insurer’s consent which consent shall not be unreasonably withheld; however, in the event such consent is given, the Insurer shall pay, subject to the provisions of Clause 4, such costs, settlements, charges and expenses. (C) The Insurer may at its option and upon request, advance on behalf of the Directors and Officers, or any of them, expenses which they have incurred in connection with claims made against them, prior to disposition of such claims, provided always that in the event it is finally established the Insurer has no liability hereunder, such Directors and Officers agree to repay to the Insurer, upon demand, all monies advanced by virtue of this provision. D & 0 Policy, Section 5. Defendants argue that, under the terms of the D & 0 policy, they are not obligated to pay any of plaintiffs defense costs until there is a final adjudication that plaintiff did not have an “actual dishonest purpose and intent ... material to the cause of action so adjudicated.” Defendants contend that they have the absolute discretion to withhold payment of defense costs pending final adjudication, thus forcing individual directors and officers to underwrite their entire legal defenses. In support of this position, defendants cite Section 5(C) of the D & 0 policy {supra). According to defendants, this last provision unambiguously grants them absolute discretion over the decision whether to advance defense costs to insured directors and officers. The case law from other jurisdictions is split on the issue of whether there is an ambiguity in the language of the D & 0 policy. Thus we have one of those legal ironies which occasionally occur — the courts are split on whether or not certain language is ambiguous. At one extreme, a number of courts have concluded that the D &" }, { "docid": "16828198", "title": "", "text": "identical policy language entitled an insured defending a declaratory judgment action to recover attorney fees. In so holding, the Colorado Court of Appeals stated: In Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), the insurance company contended that its insurance policy did not afford coverage, and accordingly filed a declaratory judgment action against its insured seeking a determination of its liability. In determining the identical issue involved in the present case, the court found coverage and held that the company must reimburse the insured for any necessary legal fees and expenses incurred in the declaratory judgment suit. In arriving at that result, the court quoted a comment from 7A J. Appleman, Insurance Law & Practice § 4691 (1962), criticizing decisions ruling that insurers were not liable for their insureds’ attorneys fees incurred in determining that coverage existed: “‘(D)espite the qualifications placed upon this rule by the court, it still appears to be unfair to the insured. After all, the insurer had contracted to defend the insured, and it failed to do so. It guessed wrong as to its duty, and should be compelled to bear the consequences thereof. If the rule laid down by these courts should be followed by other authorities, it would actually amount to permitting the insurer to do by indirection that which it could not do directly. That is, the insured has a contract right to have actions against him defended by the insurer, at its expense. If the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above....’” The court in Upland concluded that the award of attorney’s fees was proper “be cause the filing of this suit constituted a ‘request’ by Upland and therefore the company is obligated under its policy to reimburse the insured ... for all reasonable expenses incurred at the company’s request.” Accord, Standard Accident Insurance Co. v. Hull, 91 F.Supp." }, { "docid": "794055", "title": "", "text": "done in section 1(d). As stated above, ambiguities should be construed against the insurer. Third, MGIC agreed under reservation of rights to advance attorney’s fees, subject to 60-day notice of discontinuance, the exercise of which gave rise to this suit. This agreement, MGIC urges, constituted a waiver of any right the insureds had to require it to advance their attorneys’ fees. However, the so-called waiver merely was the insureds’ consent to MGIC’s advancement of fees under reservation of rights and cannot be construed as a waiver of any substantive right. MGIC is now duly exercising its reservation of right to contest liability and the insureds are litigating the matter. Fourth, MGIC asserts that the no-action clause, section 7(c), bars any attempt to make MGIC advance attorney’s fees. This section reads: Action Against Insurer Clause — No action shall be taken against the Insurer unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy nor until the amount of the Directors’ or Officers’ obligation to pay shall have been finally determined either by judgment against the Directors and Officers after actual trial, or by written agreement of the Directors or Officers, the claimant and the Insurer. No person or organization shall have any right under this policy to join the insurer as a party to any action against the Directors or Officers to determine the Directors’ or Officers’ liability, nor shall the Insurer be impleaded by the Directors or Officers or their legal representative____ The no-action clause merely bars actions against the insurer by third parties before final judgment or settlement. It does not apply to these facts. Paul Holt Drilling v. Liberty Mutual Ins. Co., 664 F.2d 252 (10th Cir.1981); Kielb v. Couch, 149 N.J. Super. 522, 374 A.2d 79 (1977) (insurer may not raise a no-action clause to bar a declaratory judgment action to adjudicate coverage and defense issues). Fifth, MGIC has cited cases and academic opinion in support of its position that D & 0 policies such as the instant one, which do not contain the typical language" }, { "docid": "13640114", "title": "", "text": "reasonable attorneys’ fees incurred through settlement. We agree. The phrase “legal proceeding” as used in the Bond is not ambiguous. The Bond provides that reasonable attorneys’ fees are recoverable by an insured if expended in defending “any suit or legal proceeding.” Therefore, the Bond does not limit the scope of “legal proceeding” to formally commenced lawsuits as Continental contends. In addition, Iowa law recognizes the doctrine of reasonable expectations in the construction of insurance contracts. Grinnell Mut. Reinsurance Co., 431 N.W.2d at 786. First Bank was reasonable in expecting that the Bond would cover legal expenses incurred in settling Hood’s threatened lawsuit and Secor’s viable claims because it would have covered attorneys’ fees incurred as a result of litigation under the same circumstances. We find the district court properly interpreted “legal proceeding” to include settlement negotiations, triggering coverage under the indemnification provision of the Bond for reasonable attorneys’ fees incurred. Therefore, the district court correctly awarded First Bank attorneys’ fees of $12,759.27. IV. APPORTIONMENT We believe the award of $12,759.27 for attorneys’ fees incurred during settlement negotiations should have been apportioned between the insurance carriers, Continental and MGIC Indemnity Corporation (MGIC). MGIC, originally a party to the instant action, was the insurer under a directors and officers personal liability policy, which insured First Bank against monetary losses as a result of claims against officers and directors for their wrongful acts. In 1983, First Bank had advanced settlement funds and incurred expenses to quiet claims against itself and its directors and officers. MGIC’s liability was implicated because Hood and Secor had claimed that the directors and officers exercised improper judgment in the employment, supervision and control of Clawson and practiced conscious avoidance of knowledge regarding the fraudulent transactions. Therefore, the settlements furthered MGIC’s interest in limited liability. MGIC stated in its summary judgment motion that it had agreed to pay the legal expenses incurred in representing the directors and officers during settlement negotiations. Counsel was specifically instructed to equitably allocate any attorneys’ fees because First Bank’s costs of defense and liability were not covered under the MGIC directors and officers liability" }, { "docid": "10576451", "title": "", "text": "Little v. MGIC Indemnity Corp., 836 F.2d 789 (3d Cir.1987), and Okada v. MGIC Indemnity Corp., 823 F.2d 276 (9th Cir.1986). These courts confronted exactly the same issue and the same policy language now before this Court and held that the policy obligated the insurer to pay the costs of defense as the insureds incurred them. The courts reasoned as follows: First, the Clause defining “Loss,” Clause 1(d), imposes a duty upon the insurer to pay the insureds’ defense costs as they are incurred; second, Clause 5(c) is ambiguous and does not clearly abrogate that duty; and third, courts must construe ambiguities in insurance contracts against the insurer and in favor of coverage. Although it is now apparent that American Casualty intended by the word “expenses” to exclude attorneys’ fees and costs of defense from the general rule of Clause 1(d), now is too late. It chose not to define “expenses” in the policy. Even if American Casualty’s interpretation of the policy is a reasonable one, it cannot prevail. The District Court found, and we agree, that the insureds’ interpretation of the policy is also reasonable. Thus, the policy is ambiguous and, following time-honored rules governing insurance policies, must be construed against American Casualty. Having determined that the policy does afford coverage for the bank officials’ defense costs, we now address the issue of exactly how much American Casualty may be required to pay. As set out above, the policy defines “loss” as “any amount the Directors and Officers are legally obligated to pay ... for a claim or claims made against the Directors and Officers for Wrongful Acts....” The policy also limits American Casualty’s liability for a single loss to $1 million. Clause 4(d) further defines American Casualty’s liability by providing that “[cjlaims based on or arising out of the same act, interrelated acts, or one or more series of similar acts, of one or more of the Directors or Officers shall be considered a single Loss.... ” American Casualty argued that use of the words “interrelated” and “similar” compelled a finding that there were only three potential losses," }, { "docid": "794054", "title": "", "text": "than negligent. This court holds that the above-quoted language does not apply in this case. Section 1(d) indicates that legal fees are “losses” incurred in connection with (alleged) negligent acts and, when they become due, the insurer must pay. As applied to these facts, this is inconsistent with section 5(c), creating an ambiguity in the policy which, under settled case law, especially in Hawaii, is construed against the drafter-insurer, even where the insured is a commercial entity, not an individual. E.g., Hurtig v. Terminix Wood Treating & Contracting Co., Haw., 692 P.2d 1153, 1154 (1984); Sturla, Inc. v. Fireman’s Fund Ins. Co., 67 Haw. 203, 210, 694 P.2d 960 (1984). An additional ambiguity is found by comparing section 5(a) with 5(c). Section 5(a) (“No costs, charges and expenses shall be incurred or settlements made without the Insurer’s consent____”) mentions “costs” and “charges” as well as the “expenses” mentioned in 5(c). If the insurer had meant to include attorney’s fees, i.e., “defense of legal actions”, in section 5(e), it could have done so explicitly as was done in section 1(d). As stated above, ambiguities should be construed against the insurer. Third, MGIC agreed under reservation of rights to advance attorney’s fees, subject to 60-day notice of discontinuance, the exercise of which gave rise to this suit. This agreement, MGIC urges, constituted a waiver of any right the insureds had to require it to advance their attorneys’ fees. However, the so-called waiver merely was the insureds’ consent to MGIC’s advancement of fees under reservation of rights and cannot be construed as a waiver of any substantive right. MGIC is now duly exercising its reservation of right to contest liability and the insureds are litigating the matter. Fourth, MGIC asserts that the no-action clause, section 7(c), bars any attempt to make MGIC advance attorney’s fees. This section reads: Action Against Insurer Clause — No action shall be taken against the Insurer unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy nor until the amount of the Directors’ or Officers’ obligation to pay" }, { "docid": "14240197", "title": "", "text": "of the Assured; . . . .” Simply stated, the language of this provision permits Oceanus to hire legal counsel for a defendant insured but requires the insured to pay for the attorney’s fees. The next pertinent portion of Oceanus’ policy provides that, in addition to liability for loss of life or personal injury, “[t]he Assured is protected and indemnified as Shipowner in respect of liabilities and expenses which he shall have become liable to pay and shall have in fact paid in respect of the ship named herein for the following:— “(m) Costs, when incurred with [Oceanus’] approval, of investigating &/or defending any claim or suit against the Assured based on a liability or an alleged liability of the Assured covered by this insurance . . ..” The excess insurer, Mutual, claims that ambiguity lurks within this language, i. e. that the legal costs referred to in paragraph (m) can be read to mean only costs independently incurred by the Trawler Arlington and subsequently ratified by Oceanus. This reading would exclude costs such as those in the present case where Oceanus itself provided counsel. Assuming that ambiguity exists, Mutual argues that the language should be read in light of the principle that ambiguous language in a policy is to be read adversely to the insurer’s interests and favorably to the interests of the insured. See, e. g., King v. Prudential Ins. Co., 359 Mass. 46, 50, 267 N.E.2d 643, 646 (1971). We reject Mutual’s arguments for several reasons, primarily because we do not believe that the language of the policy is ambiguous. As we read it, the policy first renders the Trawler Arlington accountable to Oceanus where Oceanus has exercised its right to provide legal counsel. Paragraph (m) then provides that insurance proceeds may be applied to the cost of legal counsel and nowhere hints that proceeds are not applicable to attorney’s fees where Oceanus has provided counsel. Rather, this paragraph, by its literal terms, is inclusive, reaching all costs of counsel, subject to Oceanus’ approval. Mutual, we think, strains credulity when it argues that costs directly incurred by" }, { "docid": "4765009", "title": "", "text": "of Commerce & Trust Co. v. National Union Fire Insurance Co. of Pitts burgh, Pa., 651 F.Supp. 474 (N.D.Okla. 1986) (declining to consider the question of whether the insurer should reimburse the insured officer on an “as incurred” basis until the factual basis of the insurer’s obligation is established); California Chiropractic Association v. CNA, No. C 579 326 (Cal.Super. June 26, 1986); Continental Casualty Co. v. Board of Education, 302 Md. 516, 489 A.2d 536, 539 (1985); Amrep Corp. v. American Home Assurance Co., 81 A.D.2d 325, 440 N.Y.S.2d 244, 246 (1981). The Ninth Circuit Court of Appeals did find ambiguity in the D & 0 policy. Okada, 795 F.2d at 1454. The policy contained a provision identical to Section 5 of the D & 0 policy involved in this case. The Ninth Circuit Court found that, whereas Section 5(A) creates a duty to pay reasonable defense costs, Section 5(C) represents an “attempt to escape the duty to defend potentially covered claims, or claims whose coverage has not yet been established or conceded.” Id. According to the court, Section 5(C) is ambiguous and may cause confusion in that it “does not specifically state which types of claims it is intended to cover.” Id. The ambiguity created by Section 5(C) was read against the insurer under Hawaii law, which is identical to Pennsylvania law on this point. Id.; Mohn, 458 Pa. 576, 326 A.2d 346. On the other side of the spectrum, the court in PepsiCo found that the language of the D & 0 policy unambiguously and explicitly obligates the insurer to pay defense costs as they are incurred. 640 F.Supp. at 659-60. The insurer there had argued, much as defendants argue in this case, that it “could not pay directors’ and officers’ legal fees until the conclusion of the litigation because there remained the possibility that a final adjudication would include a finding that the directors or officers had been materially dishonest” and thus not entitled to reimbursement under the terms of the policy. Id. at 659. The court disagreed. Since defense costs are a loss within the meaning" }, { "docid": "21869179", "title": "", "text": "F.Supp. 656, 659 (S.D.N.Y.1986); Fight Against Coercive Tactics Network, 926 F.Supp. at 1432 & nn. 1 & 2. In many of these actions “loss” was defined as any amount the insureds became “legally obligated to pay.” In Little v. MGIC, the Third Circuit opined, “[T]he only reasonable interpretation is that [the duty to pay] arises at the time the insured becomes ‘legally obligated to pay.’ To infer any other ... time for the insurer’s duty to pay would be arbitrary because nothing in the definition gives any guidance to when this latter time might be.” 836 F.2d at 794; in accord Brown, 787 F.Supp. at 1431-32. Moreover, as the district court in Little v. MGIC reasoned for public policy concerns, If the D & 0 policy allowed absolute discretion to the insurer to withhold payment whenever charges of intentional dishonesty are leveled against directors and officers, ... then insurers would be able to withhold payment in virtually every case. That would be a most unsatisfactory result. It would leave directors and officers in an extremely vulnerable position. Any allegations of intentional dishonesty, no matter how groundless, could bring financial ruin upon a director or officer .... Directors and officers would be forced to advance their defense expenditures, which are likely to be staggering. Meanwhile the insurer defers all payment until the final disposition of suit, which may take years. This situation is unreasonably favorable to the insurers who may blithely disclaim responsibility for the insured’s enormous financial burdens while the insured must fight on. Little v. MGIC Indem. Corp., 649 F.Supp. 1460, 1468 (W.D.Pa.1986), aff'd, 836 F.2d 789 (3d Cir.1987). The Court finds this reasoning persuasive, especially in light of the form of the policies before it. After reviewing this cases the Court concludes that the majority view, requiring payment of defense expenses up to a final adjudication, is the better rule. Should the guilt of the defendant for a wrongful act of fraud and dishonesty be established, he would be required to repay the insurer any reimbursements for defense costs made up to that point. The next issue is" }, { "docid": "794052", "title": "", "text": "when billed, which is when the legal obligation to pay arises, but only after final judgment or settlement. MGIC advances five reasons in support of this argument. These will be discussed seriatim. First, MGIC points out that nowhere does the policy state that the insurer must defend lawsuits against the insureds. However, the absence of policy language explicitly imposing a duty to defend does not mean that the policy does not require the insurer to pay defense costs. Like liability arising from a judgment or settlement, attorneys’ fees are compensable “losses” under section 1(d) of the policy, quoted above. The only difference is that such fees come due earlier than any possible adverse judgment. The general rule is that a duty to defend arises when a third-party claim presents a potential for recovery under the policy. Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, 54 (1966). The rule was adopted in this jurisdiction in Standard Oil of California v. Hawaiian Ins. & Guaranty Co., 65 Haw. 521, 527, 654 P.2d 1345, 1349 (1982) (dictum). MGIC argues, however, that section 5(c) of the policy relieves it of a duty to pay defense costs. This section states: The Insurer may at its option and upon request, advance on behalf of the Directors and Officers, or any of them, expenses which they have incurred in connection with claims made against them, prior to disposition of such claims, provided always that in the event it is finally established the Insurer has no liability hereunder, such Directors and Officers agree to repay to the Insurer, upon demand, all monies advanced by virtue of this provision. This section provides for a refund of expenses to the insurer in the event the insurer is ultimately found not liable. Although its application is not wholly clear, this section may have been meant to cover payment and recovery of defense costs in cases where the initial claim rested on dubious grounds and the facts ultimately established indicated that coverage did not exist, as where the insureds’ acts were held to be intentional rather" }, { "docid": "794053", "title": "", "text": "P.2d 1345, 1349 (1982) (dictum). MGIC argues, however, that section 5(c) of the policy relieves it of a duty to pay defense costs. This section states: The Insurer may at its option and upon request, advance on behalf of the Directors and Officers, or any of them, expenses which they have incurred in connection with claims made against them, prior to disposition of such claims, provided always that in the event it is finally established the Insurer has no liability hereunder, such Directors and Officers agree to repay to the Insurer, upon demand, all monies advanced by virtue of this provision. This section provides for a refund of expenses to the insurer in the event the insurer is ultimately found not liable. Although its application is not wholly clear, this section may have been meant to cover payment and recovery of defense costs in cases where the initial claim rested on dubious grounds and the facts ultimately established indicated that coverage did not exist, as where the insureds’ acts were held to be intentional rather than negligent. This court holds that the above-quoted language does not apply in this case. Section 1(d) indicates that legal fees are “losses” incurred in connection with (alleged) negligent acts and, when they become due, the insurer must pay. As applied to these facts, this is inconsistent with section 5(c), creating an ambiguity in the policy which, under settled case law, especially in Hawaii, is construed against the drafter-insurer, even where the insured is a commercial entity, not an individual. E.g., Hurtig v. Terminix Wood Treating & Contracting Co., Haw., 692 P.2d 1153, 1154 (1984); Sturla, Inc. v. Fireman’s Fund Ins. Co., 67 Haw. 203, 210, 694 P.2d 960 (1984). An additional ambiguity is found by comparing section 5(a) with 5(c). Section 5(a) (“No costs, charges and expenses shall be incurred or settlements made without the Insurer’s consent____”) mentions “costs” and “charges” as well as the “expenses” mentioned in 5(c). If the insurer had meant to include attorney’s fees, i.e., “defense of legal actions”, in section 5(e), it could have done so explicitly as was" }, { "docid": "4765024", "title": "", "text": "officers, then it is unreasonably favorable to the insurer. Directors and officers would be forced to advance all their defense expenditures, which are likely to be staggering. Meanwhile, the insurer defers all payment until the final disposition of suit, which may take years. This situation is unreasonably favorable to the insurers, who may blithely disclaim responsibility for the insured’s enormous financial burdens while the insured must fight on. Defendants have proposed that the nature of the allegations against plaintiff justify withholding of defense costs. If the D & O policy did allow absolute discretion to the insurer to withhold payment whenever charges of intentional dishonesty are leveled against directors and officers, as defendants claim, then insurers would be able to withhold payment in virtually every case. That would be a most unsatisfactory result. It would leave directors and officers in an extremely vulnerable position. Any allegations of intentional dishonesty, no matter how groundless, could bring financial ruin upon a director or officer. Defendants have argued strenuously that UNB “bargained for” the terms of the D & 0 policy, and that the price paid for the policy was commensurate with the interpretation advanced by defendants. Defendants maintain that purchasers of D & 0 insurance are more sophisticated than the average consumer and thus do not require the protection that an ordinary consumer might. A reading of the depositions of the UNB employees responsible for purchasing the policy actually supports plaintiff’s contention that UNB was no more sophisticated than the average consumer. As plaintiff notes in his reply brief, the agent who sold the D & 0 policy to UNB agreed with the persons who represented UNB that “the advancement of legal fees was never specifically discussed during contract negotiations.” Plaintiffs Reply Brief at 18. While the courts have been cautioned against indiscriminate use of the doctrine of unconscionability to favor one commercial party over another, Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. 807 (E.D.Pa.1981), aff'd, 676 F.2d 688 (3d Cir.1982), we find that the doctrine is entirely appropriate in this case. The beneficiaries of D & 0 insurance" }, { "docid": "794056", "title": "", "text": "shall have been finally determined either by judgment against the Directors and Officers after actual trial, or by written agreement of the Directors or Officers, the claimant and the Insurer. No person or organization shall have any right under this policy to join the insurer as a party to any action against the Directors or Officers to determine the Directors’ or Officers’ liability, nor shall the Insurer be impleaded by the Directors or Officers or their legal representative____ The no-action clause merely bars actions against the insurer by third parties before final judgment or settlement. It does not apply to these facts. Paul Holt Drilling v. Liberty Mutual Ins. Co., 664 F.2d 252 (10th Cir.1981); Kielb v. Couch, 149 N.J. Super. 522, 374 A.2d 79 (1977) (insurer may not raise a no-action clause to bar a declaratory judgment action to adjudicate coverage and defense issues). Fifth, MGIC has cited cases and academic opinion in support of its position that D & 0 policies such as the instant one, which do not contain the typical language requiring the insurer to defend suits against the insured, do not impose a duty to advance fees. However, all but one of the cited cases can be distinguished. The one case in point construed the same policy on the same issue. The court held for MGIC and dismissed the suit for failure to state a claim. Clandening v. MGIC, C.D.Cal., Civil No. 83-2432-LTL, (May 23, 1983, Lydick, J.). The Clandening court, however, had no occasion to consider the arguments and cases presented by plaintiffs herein. The Clandening plaintiffs raised only token opposition (one page) to MGIC’s motion to dismiss, and the court relied on section 5(c) of the policy, quoted above, without mentioning (in transcript of oral ruling, MGIC’s Exhibit N) the arguably conflicting section 1(d). From the record it appears that the reasoning of the Clandening court was cursory and incomplete. MGIC has a duty to fund the insureds’ defense. As noted, section 5(c) of the policy conflicts with section 1(d) defining “loss”, creating a fatal ambiguity which is construed against the drafter-insurer, even" }, { "docid": "12307269", "title": "", "text": "obligation of the appellant to defend was not incurred under the policy. It is immaterial that the claim was settled in the present case before suit was instituted for a less sum than it might have cost to defend the suit, had suit been brought. There was no liability under the terms of the policy for the settling of the claim which had not been sued on, or attorney’s fees in negotiating such settlement. It does not come within the terms of the policy and the obligations of the parties are fixed by the contract.” The action sub judice can be distinguished from Cook (1939) in at least two features. The claim against the insured in Cook (1939) was not within the coverage of the policy. Here, the policy protects Greenville against the claim arising out of the death of Duke. In Cook (1939) the insurer, in addition to notifying the insured that it had no responsibility under the policy for the claims of the workmen, also declined to provide a defense. Here, Hartford promptly began an investigation of the claim and has proceeded under a non-waiver of rights notice. Hartford was not tendered, nor has it been declined, to defend the claim. The Cook (1939) case, while not on all-fours with the case sub judice, is persuasive. The Cook court emphatically stated that the claim for reimbursement of the amount of the settlement and expenses incurred in perfecting the settlement did “not come within the terms of the policy and the obligations of the parties are fixed by the contract.” (Emphasis supplied.) Other Mississippi cases lead the court to the conclusion that the Mississippi Supreme Court places great emphasis on contract provisions in cases involving insurance policies where, as here, the provisions are plain and unambiguous. This thread of reliance upon contract provisions runs through the Mississippi cases cited to the court by counsel. In Navar Shrimp, supra, the court found the policy provision ambiguous and, therefore, subject to a construction most strongly against the insurer and most favorable to the insured. To the same effect is Travelers Ins." }, { "docid": "8793663", "title": "", "text": "that First State will defend any claims. A policy with a duty to defend typically contains a clause that provides that the insurer chooses the attorney and controls the strategy of the litigation, a valuable right to protect the insurer’s own interests. This clause is not present in the First State policy. Instead, the First State policy covers legal expenses as a loss item. Directors and officers liability policies generally do not contain a duty to defend. See Comment, Practical Aspects of Directors’ and Officers’ Liability Insurance—Allocating and Advancing Legal Fees and the Duty to Defend, 32 UCLA L.Rev. 690, 701-12 (1985). The absence of a duty to defend, however, is crucial neither to the district court’s decision nor to ours. The obligation actually enforced by the district court’s decision was a duty, under the policy, to pay defense expenses as incurred. That ruling is clearly supportable, and we agree with it. In Okada v. MGIC Indem. Corp., 823 F.2d 276 (9th Cir.1986), we concluded that a policy with pertinent language identical to First State’s required payment of legal expenses as incurred. Because the policy provided coverage for loss that the insureds became legally obligated to pay, rather than loss paid out by the insureds, it was a liability policy. Id. at 280. The insurer was required to pay legal expenses as they were incurred by the directors, because that is when the directors were legally obligated to pay. Id. The language of this policy is parallel, and Okada controls. The insuring agreement under the “Directors and Officers Liability” portion of the policy provides that First State will pay 95% of all loss which the insureds shall become “legally obligated ” to pay. (Emphasis added). Loss is defined to include “damages, judgments, settlement and costs, cost of investigation ... and defense of legal actions, claims or proceedings and appeals therefrom....” This language alone supports the district court’s ruling that First State must pay legal expenses as they are incurred, because an insured becomes legally obligated to pay legal expenses as soon as the services are rendered. Okada, 823 F.2d at" }, { "docid": "4765010", "title": "", "text": "to the court, Section 5(C) is ambiguous and may cause confusion in that it “does not specifically state which types of claims it is intended to cover.” Id. The ambiguity created by Section 5(C) was read against the insurer under Hawaii law, which is identical to Pennsylvania law on this point. Id.; Mohn, 458 Pa. 576, 326 A.2d 346. On the other side of the spectrum, the court in PepsiCo found that the language of the D & 0 policy unambiguously and explicitly obligates the insurer to pay defense costs as they are incurred. 640 F.Supp. at 659-60. The insurer there had argued, much as defendants argue in this case, that it “could not pay directors’ and officers’ legal fees until the conclusion of the litigation because there remained the possibility that a final adjudication would include a finding that the directors or officers had been materially dishonest” and thus not entitled to reimbursement under the terms of the policy. Id. at 659. The court disagreed. Since defense costs are a loss within the meaning of the policy, and since the policy obligates the insurer to pay “ ‘on behalf of’ the directors and officers ‘all losses which [they] shall become legally obligated to pay,’ ” the insurer must pay defense costs of insureds as insureds become legally obligated to pay them. Id. at 659. Entry of final judgment is not a prerequisite to payment of defense costs. However, the insurer has a right to reimbursement in the event that the directors or officers were found to have been materially dishonest. Id. The only circumstance under which the insurer could refuse contemporaneous reimbursement was “if it could establish as a matter of law that there was no possible factual basis on which it might be obligated to indemnify the directors and officers.” Id. at 660. After careful consideration, we hold that the language in question is ambiguous, and that the ambiguity must be resolved in favor of the plaintiff under Pennsylvania law. There are two ambiguous parts to the P & O policy. First, we agree with the Ninth Circuit" }, { "docid": "12721150", "title": "", "text": "of this policy as to any claims upon which suit might be brought against them, by reason of any alleged dishonesty on the part of the Directors or Officers, unless a judgment or other final adjudication thereof adverse to the Directors or Officers shall establish that acts of active and deliberate dishonesty committed by the Directors or Officers with actual dishonest purpose and in tent were material to the cause of action so adjudicated. SECTION 5 — COSTS, CHARGES AND EXPENSES (A) No costs, charges and expenses shall be incurred or settlements made without the Insurer’s consent which consent shall not be unreasonably withheld; however, in the event such consent is given, the Insurer shall pay ... such costs, charges and expenses. (C) The Insurer may at its option and upon request, advance on behalf of the Directors or Officers, or any of them, expenses which they have incurred in connection with claims made against them, prior to disposition of such claims, provided always that in the event it is finally established that Insurer has no liability hereunder, such Directors and Officers agree to repay to the Insurer, upon demand, all monies advanced by virtue of this provision. The basic principles of Pennsylvania law governing the interpretation of insurance policies are well-settled. Where the language of the policy is clear and unambiguous, a court is required, as with any contract, to enforce that language. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983). If possible, a court should interpret the policy so as to avoid ambiguities and give effect to all of its provisions. Houghton v. American Guaranty Life Ins. Co., 692 F.2d 289, 291 (3d Cir.1982). However, if the policy, when viewed as a whole, is reasonably susceptible to more than one interpretation, it is considered ambiguous. Vlastos v. Sumitomo Marine & Fire Ins. Co., 707 F.2d 775, 778 (3d Cir.1983). Any legitimate ambiguity must be resolved against the insurer. Id. The principle of construing ambiguities against the insurer is fully applicable to policies purchased by commercial entities. ACandS, Inc." }, { "docid": "8820851", "title": "", "text": "evidence is GRANTED with respect to 1) evidence regarding the reasonableness, in to to, of the ISM Litigation attorney fees; 2) evidence of communications with Williams and Connolly attorneys; 3) evidence of FRIT’s reserves with respect to the ISM Litigation; and 4) evidence of the settlement agreement in the ISM Litigation excepting certain facts about the settlement agreement as set forth above; and 4. That the admissability of evidence regarding the amount of premiums will be determined at the time of trial. . Section A of the Policy, titled \"Reimbursement for Directors and Officers Liability Insurance,” contains the following “Insuring Clause” at paragraph 1: This policy shall ... pay on behalf of the insured loss (as hereinafter defined) arising from any claim or claims made during the policy period against each ... director or officer of the insured ... by reason of any wrongful act (as hereinafter defined) in their respective capacities as directors or officers of the insured, but only when the insured shall be required or permitted to indemnify the director or officer for damages, judgments, settlements, costs, charges, or expenses incurred in connection with the defense of any action, suit, or proceeding to which the directors or officers are a party.... The definition of \"loss” in Section A of the Policy appears at paragraph 2(C), and it reads: The term \"loss” shall mean any amount the insured is required or permitted to pay to a director or officer as indemnity for a claim or claims against him arising out of those matters set forth in the insuring clause above whether actual or asserted and ... shall include damages, judgments, settlements and costs, charges and expenses, incurred in the defense of actions, suits or proceedings and appeals therefrom for which payment by the insured may be required or permitted according to applicable law, common or statutory, or under provisions of the insured’s charter. . Although, in its decision today, the Court will set forth the legal standard for determining the allocation of defense costs between the covered and non-covered claims and parties, the determination of what claims were," }, { "docid": "4764998", "title": "", "text": "OPINION COHILL, Chief Judge. I. FACTS This case revolves around a Directors and Officers insurance policy (“D & 0 policy”) purchased by Union National Bank of Pittsburgh (“UNB”) for the benefit of its directors and officers. The policy was issued by MGIC Indemnity Corp., and subsequently transferred to and assumed by the American Casualty Co. Plaintiff James P. Little was a vice-president of the commer cial loan department during the period the policy was in effect. Beginning in 1983, UNB was named as defendant in a series of lawsuits brought in this court by five other banks and lending institutions. In each case, the underlying transactions were essentially the same; two of UNB’s customers had allegedly used fraudulent letters of credit to defraud those banks and lending institutions. Plaintiff Little was named as a third party defendant by UNB in each of the lawsuits. Here, Little is seeking a declaratory judgment, ordering defendants to pay the costs of defense and attorneys fees associated with the other ongoing cases. Defendants maintain that the D & 0 policy allows them complete discretion to decide whether to reimburse directors and officers as their defense expenses are incurred. Defendants have steadfastly refused to advance plaintiff’s defense costs. The matter is presently before the court on plaintiff’s motion for summary judgment. II. ANALYSIS A. Case Law from other Jurisdictions We begin by noting that this issue has already been addressed by a number of other courts, based on D & 0 policies containing language essentially identical to the language of the D & 0 policy in this case. Two recent cases have both held that the D & 0 policy requires the insurer to reimburse defense costs as they accrue. Okada v. MGIC Indemnity Corp., 795 F.2d 1450, 1453-55 (9th Cir.1986) (insurer ordered to pay defense costs as they became due, because ambiguous language in the D & 0 policy must be resolved in favor of the insured under Hawaiian law); PepsiCo, Inc. v. Continental Casualty Co., 640 F.Supp. 656, 659-60 (S.D.N.Y.1986) (insurer found to have obligation of contemporaneous payment of defense costs, subject to" }, { "docid": "12721169", "title": "", "text": "Officers] have incurred in connection with claims made against them, prior to the disposition of such claims.” The only way the relationship between these two sections could be made any clearer is if Section 5(C) not only said that the insurer has an option to pay these expenses prior to the disposition of the claim, but also said that it has the option not to pay them prior to such disposition. Since the latter statement is clearly implicit in the former, however, it should not be necessary to include it. In the final analysis, Little’s argument that the policy is ambiguous rests entirely upon the use of the phrase “costs, charges and expenses” in Section 5(A). He does not deny that attorney’s fees come within the commonly accepted meaning of “expenses which ... [Directors or Officers have] incurred in connection with claims made against them” as that phrase appears in Section 5(C). The ambiguity is said to be created by the inclusion of a statement in Section 5(A) that “no costs, charges and expenses shall be incurred ... without Insurer’s consent.” Little finds an, intentional distinction here which the majority declares to be “significant.” At 795. Neither Little nor the majority, however, suggests why these parties might want to draw a distinction between two categories of reimburseable items as inherently indistinguishable as “charges” and “expenses” when speaking of the timing of payments for litigation expenses. Because I can think of no “expense incurred in connection with a claim” that would not also be a “cost or charge incurred in connection with a claim,” Little’s suggested distinction, for me, “tortures the language of the policy” and reads MGIC’s option under Section 5(C) out of the agreement of the parties. As the majority explains, because directors and officers are not covered by the policy when they are found to have acted with deliberate dishonesty, MGIC’s option to withhold payments for litigation expenses until after disposition of the claim is eminently reasonable; it follows that the district court erred in declaring that option unconscionable. Accordingly, I would remand with instructions to enter summary" } ]

[ { "docid": "4449481", "title": "", "text": "likely to divulge the original intention of the parties than reliance on the seemingly clear words they agreed upon at the time. See generally Morta v. Korea Ins. Co., 840 F.2d 1452, 1460 (9th Cir.1988). Pacific Gas casts a long shadow of uncertainty over all transactions negotiated and executed under the law of California. As this case illustrates, even when the transaction is very sizeable, even if it involves only sophisticated parties, even if it was negotiated with the aid of counsel, even if it results in contract language that is devoid of ambiguity, costly and protracted litigation cannot be avoided if one party has a strong enough motive for challenging the contract. While this rule creates much business for lawyers and an occasional windfall to some clients, it leads only to frustration and delay for most litigants and clogs already overburdened courts. It also chips away at the foundation of our legal system. By giving credence to the idea that words are inadequate to express concepts, Pacific Gas undermines the basic principle that language provides a meaningful constraint on public and private conduct. If we are unwilling to say that parties, dealing face to face, can come up with language that binds them, how can we send anyone to jail for violating statutes consisting of mere words lacking “absolute and constant referents”? How can courts ever enforce decrees, not written in language understandable to all, but encoded in a dialect reflecting only the “linguistic background of the judge”? Can lower courts ever be faulted for failing to carry out the mandate of higher courts when “perfect verbal expression” is impossible? Are all attempts to develop the law in a reasoned and principled fashion doomed to failure as “remnant[s] of a primitive faith in the inherent potency and inherent meaning of words”? Be that as it may. While we have our doubts about the wisdom of Pacific Gas, we have no difficulty understanding its meaning, even without extrinsic evidence to guide us. As we read the rule in Califor nia, we must reverse and remand to the district court in" } ]

[ { "docid": "5994219", "title": "", "text": "were removed today from our law, general disaster would result * *.” We are asked to believe that the rule enables businessmen, advised by their lawyers, to rely with indispensable confidence on written contracts unimpeachable by oral testimony. In fact, seldom can a conscientious lawyer advise his client, about to sign an agreement, that, should the client become involved in litigation relating to that agreement, one of the many exceptions to the rule will not permit the introduction of uncertainty-producing oral testimony. As Corbin says, “That rule has so many exceptions that only with difficulty can it be correctly stated in the form of a rule.” One need but thumb the pages of Wigmore, Williston, or the Restatement of Contracts to see how illusory is the certainty that the rule supplies. “Collateral parol agreements contradicting a writing are inadmissible,” runs the rule as ordinarily stated; but in the application of that standard there exists, as Williston notes, “no final test which can be applied with unvarying regularity.” Wigmore more bluntly says that only vague generalizations are possible, since the application of the rule, “resting as it does on the parties’ intent, can properly be made only after a comparison of the kind of transaction, the terms of the document, and the circumstances of the parties * * * Such is the complexity of circumstances and the variety of documentary phraseology, and so minute the indicia of intent, that one ruling can seldom be controlling authority or even of utility for a subsequent one.” The recognized exceptions to the rule demonstrate strikingly that business can endure even when oral testimony competes with written instruments. If business stability has not been ruined by the deed-mortgage exception, or because juries may hear witnesses narrate oral understandings that written contracts were not to be operative except on the performance of extrinsic conditions, it is unlikely that commercial disaster would follow even if legislatures abolished the rule in its entirety. In sum, a rule so leaky cannot fairly be described as a stout container of legal certainty. John Chipman Gray, a seasoned practical lawyer, expressed" }, { "docid": "19702509", "title": "", "text": "and thus never became part of the parties’ agreement. 517 F.Supp. at 1235. The court reasoned that by consenting to jurisdiction in a forum where it could not otherwise be compelled to appear, a party “ ‘waives in large part many of his normal rights under the procedural and substantive law of the state, and it would be unfair to infer such a significant waiver on the basis of anything less than a clear indication of intent.’ ” 517 F.Supp. at 1235 (quoting Marlene Industries Corp. v. Carnac Textiles, Inc., 45 N.Y.2d 327, 380 N.E.2d 239, 408 N.Y.S.2d 410 (1978)). This Court likewise concludes that selection of a distant forum with which a party has no contacts, while enforceable if contained in an agreement freely and consciously entered into, can result in surprise and hardship if permitted to become effective by way of confirmation forms that unfortunately are all too often never read. Subtle differences in courts, jurors and law among the states and considerations of litigation expense are factors the Court believes most merchants would consider important. See General Instrument, supra, 517 F.Supp. at 1235. The Court concludes that the forum selection clauses contained in seller’s acknowledgment form and invoice materially altered the parties’ contract. As a result buyer never consented by way of contract to jurisdiction in this state. Seller also contends that the Court can infer buyer’s consent to jurisdiction from a prior transaction between the parties. Seller notes that approximately one month prior to the facts which gave rise to the present lawsuit buyer placed a similar order with seller. In acknowledgment of that order seller mailed buyer a form containing a forum selection clause identical to the one presently at issue. In the prior transaction, however, buyer’s president signed an acknowledgment receipt, supplied by seller, which read: “This acknowledgment has been checked for accuracy and is approved for production according to the terms and conditions of sale as stated on this copy and its attachments.” The Court rejects seller’s reasoning that buyer’s acknowledgment in the prior transaction can be used to determine the nature of" }, { "docid": "21213012", "title": "", "text": "fraud or overwhelming economic power that would provide grounds for the revocation of any contract.” 473 U.S. at 627, 105 S.Ct. at 3354 (internal quotation marks and citation omitted). Furthermore, we can see no basis for a claim that the Agreement was the product of Intersections' fraud. Moreover, we do not understand how a party can claim to be subject to overwhelming economic power when contracting for a service that costs only $4.99 a month and is available from more than one source and, in any event, she may not need as it may be essentially worthless. Clearly, if Gay objected to the terms of the Agreement she could have walked away from it. Thus, her position is different, for example, from that of a homeowner facing a mortgage foreclosure who accepts onerous refinancing terms in a desperate attempt to save her home. . See supra note 15. . The Thibodeau court certainly has had much judicial company in expressing its sentiments. It might be more evenhanded, however, also to recognize that a business such as Intersections which enters into transactions bringing it very small revenues under any particular contract, perhaps $39.92 in the case of Gay, has a legitimate reason to seek to avoid expensive litigation to resolve disputes with its customers and instead resolve its disputes less formally and probably less expensively in arbitration. . Of course, Lytle and Thibodeau are Superi- or Court cases and thus even if we were concerned with pure state law they would not bind us. See State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710, 713 (3d Cir.2000). We hasten to add, however, that even if they were Pennsylvania Supreme Court cases our result would be the same. We also note that in a very different context from that here the Supreme Court of Pennsylvania has indicated that \"[w]hile we believe that Lytle was well intentioned in its efforts to guard against pernicious lending practices, our conclusion is that it swept too broadly.” Salley v. Option One Mort. Corp., 592 Pa. 323, 925 A.2d 115, 129 (2007)." }, { "docid": "22822246", "title": "", "text": "be balanced against the others, taking into account any unique facts and circumstances. ■ We reiterate, however, that interlocutory appeals are inherently “disruptive, time-consuming, and expensive,” Mowbray, 208 F.3d at 294, and consequently are generally disfavored. Piecemeal appellate review has a deleterious effect on judicial administration. It increases the workload of the appellate courts, to the detriment of litigants and judges. It requires the appellate courts to consider .issues that may be rendered moot if the appealing party ultimately prevails in or settles the case. It undermines the district court’s ability to manage the action. And it creates opportunities for abuse by litigants seeking to delay resolution of a case by raising with the appellate court objections to the scope of an order that should have been raised first with the district court itself. Most of these concerns are, if anything, even more compelling in the class action context, especially given the district court’s broad authority under Rule 23(c)(1) to monitor and if necessary reconsider its class certification decision as discovery unfolds and the action progresses to trial. We will therefore use restraint in accepting Rule 23(f) petitions, and these interlocutory petitions will not be accepted as a matter of course. B. Turning to the particulars of this case, we acknowledge that this lawsuit may not raise the kind of issues that ordinarily might warrant granting a Rule 23(f) petition. First, we do not believe the grant of class status here raises the stakes of litigation so substantially that the Defendants likely will feel irresistible pressure to settle. The certified Plaintiff class, while large, is only seeking declaratory and in-junctive relief (not money damages). As a result, the size of the certified class, in this particular case, does not place tremendous economic pressure on Defendants. And while an award of injunctive and declaratory relief would exert a significant impact on the administration of the state HCBW program, Defendants’ interlocutory appeal does not concern the scope of this potential relief. Second, while we agree with Defendants that the district court would have been wiser to certify several subclasses rather than one" }, { "docid": "4690520", "title": "", "text": ". We also note the unorthodox way in which the Auna Foundation became involved in this action. Rather than formally filing a claim of ownership of the Inn and moving to intervene in the proceedings, the Foundation's lawyer, who is also counsel for a number of the other Ellis-controlled entities, added the Foundation's name to various motions filed a few days before the trial. The Foundation never obtained independent counsel, and its litigation posture was identical to that of other Ellis entities. Having failed to go through the normal mechanics for joining as a party in an ongoing district court proceeding, the Foundation failed to establish an independent presence in the litigation. . We note, by way of analogy, that instrumen-talities of foreign nations, which also are not protected by the seventh amendment, are not entitled to jury trials. See Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1534-35 (11th Cir.), cert. denied sub nom., Arango v. Compania Dominicana de Aviacion, 474 U.S. 995, 106 S.Ct. 408, 88 L.Ed.2d 359 (1985); Goar v. Compania Peruana de Vapores, 688 F.2d 417, 426 (5th Cir.1982); Rex v. Cia. Pervana De Vapores, S.A., 660 F.2d 61, 62-69 (3d Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); Williams v. Shipping Corp. of India, 653 F.2d 875, 881-83 (4th Cir.1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). . This case provides a textbook example of how equitable doctrines, developed by the courts in an effort to avoid fraud and oppression, can be manipulated to achieve fraud and oppression. In allowing the parties to undermine the finality of a facially unconditional transfer in Kawau-chi, the Hawaii Supreme Court no doubt hoped to achieve a fairer result, consistent with the widespread notion that justice will be served if only parties are allowed to explain their undocumented intentions and reservations. What the court might have overlooked, however, is the unfairness that can flow from the necessity of litigating a claim such as Ellis’s. When parties are allowed to undermine the finality of written instruments, every transaction can be" }, { "docid": "6225606", "title": "", "text": "banc); but see id. at 655 (Celebrezze, J., dissenting). Moreover, in the case of a substitution request such as in Zurich Insurance Co., allowing substitution may be “‘the wiser answer to the problem of expediting trials and avoiding unnecessary delay and expense of requiring an action to be started anew where a substitution is desired though the subject matter of the actions remains identical.’ ” Park B. Smith, Inc. v. CHF Indus. Inc., 811 F.Supp.2d 766, 774 (S.D.N.Y.2011) (quoting Nat’l Mar. Union of Am. v. Curran, 87 F.Supp. 423, 426 (S.D.N.Y.1949)). The cases cited by the Advisory Committee in the note explaining the adoption of Rule 17(a)(3), Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed.2d 1319 (1953), and Link Aviation, Inc. v. Downs, 325 F.2d 613 (D.C.Cir.1963), take a similarly pragmatic approach. In the latter case, for example, parties who had subrogated their interests in a given claim mistakenly brought suit in their own names, rather than in the names of the subrogees. Link Aviation, 325 F.2d at 613-14. The court reasoned that this error, while significant, did not render the suit “a nullity.” Id. at 615. It concluded that substitution of the subrogees was merited. Id. The court explained: Any other rule would be highly technical without meaningful purpose. The complaint alleged injury at the- hands of the defendants. The suit was to recover therefor. That the recovery, if made, would inure not to the benefit of the nominal plaintiffs, but to that of the [subrogees] ... did not deprive the suit of a status which enabled the [subro-gees] to substitute themselves as plaintiffs and continue the suit in their own names. Id. Of course, jurisdictional requirements imposed by the Constitution cannot be cast aside because they are onerous or require expense, or because the results of their application appear unfair or unduly technical. But here the concerns animating a constitutional principle are absent, so it seems to me that practical considerations may ultimately prevail. Concededly, the plaintiffs request in the case at bar to obtain a post-commencement assignment may implicate different concerns than the type" }, { "docid": "4690513", "title": "", "text": "a repurchase option creates a mortgage when the parties so intend. 647 F.2d at 1247; see Kawauchi v. Tabata, 49 Haw. 160, 413 P.2d 221 (1966). These eases establish that the intent of the parties is the controlling factor in determining whether a transaction is a sale or a mortgage. See In re Ellis, 647 F.2d at 1247; see also In re Estate of Damon, 5 Haw.App. 304, 689 P.2d 204, 209 (1984) (“the intent of the parties is crucial in determining the nature of the transaction”). After a five-day trial, the district court determined that the parties to the March 1971 transaction had intended it to be an outright sale, subject merely to the repurchase option held by Ellis. Unlike the lender in Kawauchi, Corey and Hagopian never discussed with Ellis the prospect of making a loan and they paid a fair market price. These findings are not clearly erroneous, particularly since the intent of the parties, as found by the district court, coincides with the face of the transaction. Moreover, we seriously doubt whether the rule in Kawauchi applies to this case. The Hawaiian practice of construing certain conveyances in fee simple as mortgages is an equitable concept, designed to protect a mortgagor’s right of redemption from overreaching lenders. See Kahau v. Booth, 10 Haw. 332, 334 (1896) (“Once a mortgage always a mortgage, and the mortgagor is allowed to redeem.”). In this case, however, the district court found that any overreaching was done by Ellis, not Corey. According to the court, Ellis “intended and attempted to use his secret knowledge and interpretation of Kawauchi to ensnare, entrap, and defraud an unsophisticated friend who meant only to help him.” Decision and Order at 52. We do not believe the Hawaii courts would apply an equitable doctrine to reach an inequitable result. See Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733, 744 (1976) (a party may not “profit by his own misconduct”); Kawauchi, 413 P.2d at 236 (“he who seeks equity must do equity”) (internal quotations omitted). We hold therefore that the district court properly construed" }, { "docid": "22541578", "title": "", "text": "“to big business and little business alike,... corporate interests [and]... individuals”). Indeed, arbitration’s advantages often would seem helpful to individuals, say, complaining about a product, who need a less expensive alternative to litigation. See, e. g., H. R. Rep. No. 97-542, p. 13 (1982) (“The advantages of arbitration are many: it is usually cheaper and faster than litigation; it can have simpler procedural and evidentiary rules; it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; it is often more flexible in regard to scheduling of times and places of hearings and discovery devices . . .”). And, according to the American Arbitration Association (also an amicus here), more than one-third of its claims involve amounts below $10,000, while another third involve claims of $10,000 to $50,000 (with an average processing time of less than six months). App. to Brief for American Arbitration Association as Amicus Curiae 26-27. We are uncertain, however, just how the “objective” version of the “contemplation” test would help consumers. Sometimes, of course, it would permit, say, a consumer with potentially large damages claims to disavow a contract’s arbitration provision and proceed in court. But, if so, it would equally permit, say, local business entities to disavow a contract’s arbitration provisions, thereby leaving the typical consumer who has only a small damages claim (who seeks, say, the value of only a defective refrigerator or television set) without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery. In any event, § 2 gives States a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision. States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but" }, { "docid": "22924147", "title": "", "text": "undeniably cases in which anyone can see that postponement of an appellate decision until all proceedings in the court below have terminated will, because of erroneous interlocutory rulings by the trial judge, require long and needless trials which could be avoided by permitting discretionary intermediate appeals. When I was at the Bar, I frequently encountered such unfortunate cases; their unfairness is perhaps less apparent to us when we are translated to the bench. The refusal of an interlocutory appeal may, in actual result, deprive a party of any review at all where “an appeal from the final decree is likely to be worthless so far as the money already paid out is concerned.” Judge Hosmer, in Magill v. Lyman, 6 Conn. 59, 67 (objecting to the denial of an appeal in that case because there was no final order) remarked: “Besides, if the error is reviewed, after the determination of the action at law, how inequitable and ruinous the delay! Years may elapse before this event takes place, and in the meantime the action may run the whole round of litigation until it is exhausted to the dregs, and the party is deprived of property in this unnecessary conflict much beyond the whole value of the matter in question.” The prospective cost of wastefully prolonged litigation, thus caused, often induces acceptance of an unfair settlement by a party who cannot afford the financial outlays needed to continue with the trial. As the Supreme Court has said (per Chief Justice Taft) : “One of the causes for complaint of the general administration of justice is the expense it entails upon the litigants * * *.” Los Angeles Brush Corp. v. James, 272 U.S. 701, 707, 47 S.Ct. 286, 289, 71 L.Ed. 481. The Bills of Rights in the Constitutions of many States provide, in varying forms, that “every person ought to obtain justice freely and without being obliged to purchase it,” an obviously basic principle of any decent legal system in a democracy. The needlessly excessive cost of litigation violates that principle, since, for many citizens, it puts a prohibitive price" }, { "docid": "4690514", "title": "", "text": "whether the rule in Kawauchi applies to this case. The Hawaiian practice of construing certain conveyances in fee simple as mortgages is an equitable concept, designed to protect a mortgagor’s right of redemption from overreaching lenders. See Kahau v. Booth, 10 Haw. 332, 334 (1896) (“Once a mortgage always a mortgage, and the mortgagor is allowed to redeem.”). In this case, however, the district court found that any overreaching was done by Ellis, not Corey. According to the court, Ellis “intended and attempted to use his secret knowledge and interpretation of Kawauchi to ensnare, entrap, and defraud an unsophisticated friend who meant only to help him.” Decision and Order at 52. We do not believe the Hawaii courts would apply an equitable doctrine to reach an inequitable result. See Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733, 744 (1976) (a party may not “profit by his own misconduct”); Kawauchi, 413 P.2d at 236 (“he who seeks equity must do equity”) (internal quotations omitted). We hold therefore that the district court properly construed the March 1971 transaction as a sale. C.Summary Judgment Requiring Appellants to Relinquish Possession of the Inn Appellants argue that the bankruptcy court incorrectly held, as a matter of law, that they were required to relinquish possession of the Silversword Inn to Corey. However, under 11 U.S.C. § 542(a) (1988), an entity in control of property that a trustee could use or sell pursuant to 11 U.S.C. § 363 (1988), must turn that property over to the trustee. Appellants may be correct in arguing that, prior to relinquishing control of the property, a creditor is entitled to some form of security; however, appellants do not in fact have any valid claims against Corey’s estate, all such claims having been found worthless. Thus, they cannot claim that their rights as creditors have been prejudiced. On the merits, we hold that the district court’s grant of summary judgment was proper because there were' no material issues of fact in dispute. Even if equitable defenses such as laches were available to defeat the operation of section 542, appellants" }, { "docid": "12862505", "title": "", "text": "(Settlement Agreement ¶¶ LL, MM), and for the GUC Trust “to resolve Late Claims Motions and the Plaintiffs’ asserted claims against the GUC Trust and Old GM.” {Id. IfKK.) In light of the parties’ intent to “forestall litigation,” which started as early as May 2017, it makes little doubt that that “prudence suggests that their agreement be written to make it readily enforceable, and to avoid further litigation.” Winston, 777 F.2d at 83; Hernandez, 2017 WL 4838328, at *4; see also Nieves, 2011 WL 6533328, at *9 (finding that where the draft settlement agreement specifically stated that its purpose was to “settle and dispose of claims which are contested and denied, and is being entered into to avoid the delay, uncertainty, inconvenience and expense of protracted litigation of the disputed claims,” the factor weighs in favor of finding that' the parties' did not intend to be bound to an agreement in the absence of written execution). Yet, where, as here, the Settlement Agreement is one of the type usually put to writing, at least two Second Circuit courts have held that where an agreement that is typically reduced to writing is, in fact, reduced to writing, although unexe-cuted, the last Winston factor weighs in favor of enforcing the agreement. In Alvarez, the court reasoned that although “[defendants concede that the settlement agreement in this case is the type of agreement that is ordinarily written ,.. Nonetheless, here there was a written settlement agreement that was substantially complete. The parties had extensively negotiated the language of the agreement, and only a couple of items remained. While the written agreement was not signed, the terms of the agreement had been largely reduced to writing. Hence, this [fourth Winston ] factor weighs in favor of enforcing the agreement.” 146 F.Supp.2d at 337. And in Conway, the court likewise noted that “even if the agreement is the type that is typically reduced to writing, the written draft of the settlement had essentially been finalized,” concluding that “the four factors of the Winston test .,. demonstrate plaintiffs intent to enter into a binding oral agreement.”" }, { "docid": "22541577", "title": "", "text": "underlying the “contemplation of the parties” test was, in Chief Judge Lum-bard’s words, the need to “be cautious in construing the act lest we excessively encroach on the powers which Congressional policy, if not the Constitution, would reserve to the states.” Metro Industrial Painting Corp., supra, at 386 (concurring opinion). The practical force of this argument has diminished in light of this Court’s later holdings that the Act does displace state law to the contrary. See Southland Corp. v. Keating, 465 U. S., at 10-16; Perry v. Thomas, 482 U. S., at 489-492. Finally, we note that an amicus curiae argues for an “objective” (“reasonable person” oriented) version of the “contemplation of the parties” test on the ground that such an interpretation would better protect consumers asked to sign form contracts by businesses. We agree that Congress, when enacting this law, had the needs of consumers, as well as others, in mind. See S. Rep. No. 536, 68th Cong., 1st Sess., 3 (1924) (the Act, by avoiding “the delay and expense of litigation,” will appeal “to big business and little business alike,... corporate interests [and]... individuals”). Indeed, arbitration’s advantages often would seem helpful to individuals, say, complaining about a product, who need a less expensive alternative to litigation. See, e. g., H. R. Rep. No. 97-542, p. 13 (1982) (“The advantages of arbitration are many: it is usually cheaper and faster than litigation; it can have simpler procedural and evidentiary rules; it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; it is often more flexible in regard to scheduling of times and places of hearings and discovery devices . . .”). And, according to the American Arbitration Association (also an amicus here), more than one-third of its claims involve amounts below $10,000, while another third involve claims of $10,000 to $50,000 (with an average processing time of less than six months). App. to Brief for American Arbitration Association as Amicus Curiae 26-27. We are uncertain, however, just how the “objective” version of the “contemplation” test would help consumers. Sometimes, of course, it" }, { "docid": "7171462", "title": "", "text": "under the contract formula. The fact that the amount has been reduced in litigation does not mean that it would be unfair to assess interest on the balance, or that the purpose of awarding interest — compensating the non-breaching party for the loss of the use of money — is not served. We hold that interest should be awarded to the government. As the government concedes, the question of whether interest should be allowed and to what extent are matters within the court’s reasoned discretion. We believe that an appropriate rate is that established by the Contract Disputes Act, a relatively conservative figure based on government securities. The accrual date is of concern to the court, however. The government proposes using the date of demand by the CO as the triggering event, making interest due from July 22, 1987. What that date does not take into account, however, is that Seaboard’s contract has been bundled from the outset with more than a dozen other cases filed over twelve years ago. The lengthy procedural history of these cases need not be repeated here, and the government is correct that much of that history can be attributed to plaintiffs’ litigation decisions. It is also true, however, that resolution of each individual case has been delayed merely by the fact that it has been consolidated with other cases. The government in particular has benefitted in terms of avoiding litigation expense by being able to argue in multiple cases the results of rulings in other cases. This process has, until recently, however, virtually assured that no single case could be resolved until the host of legal issues was addressed. One other factor which mitigates against using a 1987 date can be considered. Although the court has held that neither the inaccuracy of the initial cruise nor the resale to Hermann Bros, bear on the damage calculation, we find it a relevant consideration that, if the initial cruise had been accurate, substantially more time would have to have been allowed from the outset for completing the harvest. That consideration is independent of the SOFT I" }, { "docid": "14434287", "title": "", "text": "Weighing the “difficult, time-consuming and expensive” nature of the redaction process against the “little resulting benefit,” Judge Falk concluded that IPDA, as the only entity that would arguably benefit from the redaction process, should pay for the redaction. (Tr. 69). Judge Falk considered it unfair to retroactively impose the burdens of redaction on the parties, noting that IPDA’s application comes three years into this litigation and that the parties have operated under the Protective Order since 2001. (Tr. 70). He summarized IPDA’s involvement in this case as follows: You have a situation where you have a private, for-profit entity, IPDA, coming late in the game, seeking access which will require an extraordinarily difficult, time-consuming, and expensive redaction, with questionable benefit to IPDA-although I’m not sure it’s for me to decide what they will find or it will find beneficial-and absolutely no benefit to the parties, and where IPDA seeks this information to profit on this information, while causing enormous-expense to the parties, I find that to be unacceptable, unjustifiable, and inappropriate; and, under the circumstances, the equities, logic, and fairness require that IPDA be required to pay for the redaction. (Tr. 72). Finally, Judge Falk denied IPDA’s application for more specific findings about representative documents and declined to allow IPDA counsel, based on a sampling procedure, to “review the redacted material, as counsel, for attorneys’ eyes only,” absent agreement by the Parties. (Tr. 79). STANDARD OF REVIEW A district court may refer certain non-dispositive pretrial matters to a magistrate judge for resolution. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(a)(1). A district court may reconsider and reverse any pretrial matter referred to a magistrate judge “where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1)(A). “The district court is bound by the clearly erroneous rule in findings of facts; the phrase ‘contrary to law” indicates plenary review as to matters of law.” Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992). A finding is clearly erroneous “when although there is" }, { "docid": "11616356", "title": "", "text": "sponte as to whether the complaint was deficient in the first place. I cannot believe that a district court would ever hold the complaint sufficient and enter default judgment on it: If the court should do so at that point, the defendant would lose nothing by entering the case, essentially to litigate its Rule 12(b)(6) case via a Rule 60(b) motion. The majority thus provides yet another safety net for the previously defaulting defendant, who would also enjoy a generous standard of review in its effort to convince us on appeal that the district court erred in holding the original complaint sufficient. On one hand, a district court that enters a default judgment on a complaint that’s sufficiency is truly a close call would face a significant probability of reversal. If, on the other hand, the district court should require amendment and notice to the defaulting defendant, the plaintiff might not even have the right to appeal. Thus, when faced with a marginal complaint, a district court will likely opt to err on the side of requiring amendment (either actual or de facto) and providing the defendant in default a new opportunity to respond. This result is inordinately lopsided and, even worse, favors the wearer of the black hat over the wearer of the white hat. Our default judgment jurisprudence carefully balances our preference for judgments on the merits with “considerations of social goals, justice and expediency.” We do not honor this balance, much less retain it, by allowing the defaulting defendant to lie behind the log until after a Rule 55(b)(2) hearing, then have the option to jump into the fray and litigate the merits as though his default had never occurred. Under today’s decision, the defendant may comfortably sit back while the plaintiff goes to the trouble, time, and expense- of a Rule 55(b)(2) hearing, leaving the district court to grapple with legal issues that are truly the defendant’s own duty to raise and support. I see this as grossly unfair to the innocent plaintiff and a waste of judicial resources. Far better and fairer, in my view," }, { "docid": "17522956", "title": "", "text": "a freeze plus a post-citation hearing complies with state law. Whatever may be said for or against pre-citation hearings as a matter of wise public policy, such a rule should be adopted (if at all) through the administrative process or a statutory amendment rather than judicial definition of the phrase “unfair or unconscionable”. The legislative. and administrative processes can take full account of all affected interests in a way that judicial case-by-case decision-making cannot. How often, for example, would a pre-citation notice enable debtors to clean out accounts and hide their assets, frustrating efforts to collect judgments? How often do banks erroneously hand over exempt assets when they misconstrue citations and think that immediate action is required? How long does Illinois take to afford judicial resolution when a post-citation request is made? The longer it takes, the more attractive is a pre-citation hearing even at some cost in allowing debtors to evade collection. But we know none of these vital details and thus are poorly suited to make a rule on the subject. At all events, Beler does not ask us to do so (as we’ve mentioned, her argument is that we should use § 1692f to enforce existing state and federal laws exempting certain assets from execution). Section 1692f certainly does not create a pre-citation hearing requirement on its own. The phrase “unfair or unconscionable” is as vague as they come. The list following the main clause provides some guidance. Here is the full text: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. (2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent" }, { "docid": "23020765", "title": "", "text": "value excess profits tax, $3,097.83 in excess profits tax, for 1945, and $2,798.20 in income tax for 1946. The Tax Court entered its decision sustaining the Commissioner’s determination of deficiency in the taxpayer’s income tax for the year 1946. There is only one issue presented by this case. Is petitioner entitled to treat “rental” payments made by “lessee” as long term capital gains or must she treat them as ordinary income? Conversely, is lessee, the Wilshire Holding Corp., entitled to treat these payments as a deductible business expense as defined by Int.Rev.Code Sec. 23(a) (1) (A), 26 U.S.C.A. § 23(a) (1) (A) or merely as non-deductible capital expenditures? The sole issue, therefore, is whether the agreement is a lease or a contract for the sale of land. The courts, in making determinations of this sort, commonly consider the intent of the parties and the legal effect of the instrument as written. It seems well settled that calling such a transaction a “lease” does not make it such, if in fact it is something else. Judson Mills, 1948, 11 T.C. 25; Robert A. Taft, 1938, 27 B.T.A. 808. To determine just what it is the courts will look to see what the parties intended it to be. Benton v. Commissioner, 5 Cir., 1952, 197 F.2d 745. Both petitioner and Wilshire Holding Corp. have at all times referred to the agreement as a lease and they have treated the payments as rental income and rental expense respectively. For this reason, perhaps, the Tax Court assumed that the parties intended a lease. However, the test should not be what the parties call the transaction nor even what they may mistakenly believe to be the name of such transaction. What the parties believe the legal effect of such a transaction to be should be the criterion. If the parties enter into a transaction which they honestly believe to be a lease but which in actuality has all the elements of a contract of sale, it is a contract of sale and not a lease no matter what they call it nor how they treat" }, { "docid": "23475502", "title": "", "text": "judgment. Moores may have expectations, and one function of the law is to protect expectations. Another function of the law is to reach correct results. Rule 60(a) mediates between the interest in finality and the interest in accuracy. It does this by a combination of a very small scope (“clerical” mistakes) and an unlimited time; Rule 60(b)(1) allows correction of additional errors and difficulties, but it has a year’s deadline. The balance, to which we must adhere, is that when the error is “clerical” the time of correction does not matter. The tension between the protection of expectations and the pursuit of accuracy is not unique to judgments. In commercial law parties often sell or assign interests in notes and other contracts. The venerable rule governing such transactions is that the purchaser of a negotiable instrument for value and without notice of any defect acquires the instrument free of claims and defenses that would apply to the transfer- or. See § 3-305 of the Uniform Commercial Code; Farnsworth, Contracts 783 (1982). Someone who signs a negotiable obligation knows that claims may be transferred to a holder in due course, and this prospect may influence the price. The difficulty of asserting defenses against a holder in due course may make the transaction less attractive to the maker of the note, but it also increases the liquidity of the obligation as the other party sees things, and so may lead it to offer a better deal. Purchasers of non-negotiable obligations, by contrast, take them subject to all defenses — no matter how late these defenses may arise, and no matter how much they may unsettle expectations. The contracting parties can act with greater assurance in the sense that their original bargain will survive subsequent transfers. The obligor’s expectations are not affected by subsequent transactions it cannot control. If an event later unsettles the contract, the buyer of the contract right will not receive what it expected (the performance of the obligor) but must settle for its remedies against the party from which it acquired the rights. This approach is imperfect, as are" }, { "docid": "20093314", "title": "", "text": "settle the claims against them. In the real world created by CERCLA, litigation expenses have consumed inordinately large sums that could far better have been applied to cleanup. Obviously each day of delay adds to the “transaction” costs of litigation. Unless a party in Hecla’s situation can receive reasonable assurance that its settlement payment will buy a peace with finality, it may see little advantage in early settlement. Absent the contribution claim protection provided by Congress, one recalcitrant party might be able to hinder and delay indefinitely the settlement efforts of other parties. While the contribution protection rule may sometimes result in disproportionate liability, the possibility of such results is speculative, whereas the manifold advantages of early, final, individual settlements are highly probable. B. Inherent Authority Settlements and Contribution Protection. ASARCO and Res-ASARCO do not challenge the inherent authority of the government to enter into cash-out settlements. See United States v. Hercules, Inc., 961 F.2d 796 (8th Cir.1992). However, they do argue that because cash-out settlements are not specifically mentioned in § 122 of CERCLA, 42 U.S.C. § 9622, the government cannot extend section 113 contribution protection to Hecla. CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2), provides in clear, plain language that: “[a] person who has resolved its liability to the United States ... in a judicially approved settlement shall not be liable for claims for contribution.... ” When a party enters into a cash settlement with the government of a section 107 claim and that settlement is approved by a court, that party clearly “has resolved its liability to the United States ... in a judicially approved settlement.” Therefore, I conclude that in an inherent authority settlement the government can extend contribution protection to the settling party. Every party is free to settle early and seek contribution claim protection, or to waive that immunity by delaying settlement. While it might be argued in other circumstances that § 113(f)(2) encourages a “race to settlement,” any contention that Hecla has here engaged in such a race and thereby gained unfair advantage is belied by the rude fact that this case has" }, { "docid": "4690521", "title": "", "text": "de Vapores, 688 F.2d 417, 426 (5th Cir.1982); Rex v. Cia. Pervana De Vapores, S.A., 660 F.2d 61, 62-69 (3d Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); Williams v. Shipping Corp. of India, 653 F.2d 875, 881-83 (4th Cir.1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). . This case provides a textbook example of how equitable doctrines, developed by the courts in an effort to avoid fraud and oppression, can be manipulated to achieve fraud and oppression. In allowing the parties to undermine the finality of a facially unconditional transfer in Kawau-chi, the Hawaii Supreme Court no doubt hoped to achieve a fairer result, consistent with the widespread notion that justice will be served if only parties are allowed to explain their undocumented intentions and reservations. What the court might have overlooked, however, is the unfairness that can flow from the necessity of litigating a claim such as Ellis’s. When parties are allowed to undermine the finality of written instruments, every transaction can be held hostage to competing claims as to what might have been said or believed by any of the participants. Moreover, disregarding the plain language of a deed or contract may, as in this case, enable a party to enter the transaction with the intent \"to ensnare, entrap, and defraud.” In any event, litigating such claims, no matter how legitimate, is expensive, time-consuming and nerve-racking. While holding parties to the words of their written instruments may result in an occasional unfairness, it certainly avoids the type of delay, unfairness and expense generated in this case. Suffice to say that, but for the Kawauchi rule, this case would have been over in 1982, or sooner. On balance, we believe that the far wiser, as well as fairer, rule is one which puts parties on notice that they will be bound by the terms of the instruments they sign. See Trident Center v. Connecticut General Life Ins. Co., 847 F.2d 564, 569-70 (9th Cir.1988)." } ]

[ { "docid": "22777450", "title": "", "text": "Tennessee affirmed the convictions. In applying to us for certiorari, Ware and Ashcraft urged that alleged confessions were' used at their trial which had been extorted from them by state law enforcement officers in violation of the Fourteenth Amendment, and that “solely and alone” on the basis of these confessions they had been convicted. Their contentions raised a federal question which the record showed to be substantial and we brought both cases here for review. Upon oral argument before this Court Tennessee’s legal representatives conceded that the convictions could not be sustained without the confessions but defended their use upon the ground that they were not compelled but were “freely and voluntarily made.” The record discloses that neither the trial court nor the Tennessee Supreme Court actually held as a matter of fact that petitioners’ confessions were “freely and voluntarily made.” The trial court heard evidence on the issue out of the jury’s hearing, but did not itself determine from that evidence that the confessions were voluntary. Instead it overruled Ashcraft’s objection to the use of his alleged confession with the statement that, “This Court is not able to hold, as a matter of law, that reasonable minds might not differ on the question of whether or not that alleged confession was voluntarily obtained.” And it likewise overruled Ware’s objection to use of his alleged confession, stating that “the reasonable minds of twelve men might . . . differ as to . . . whether Ware’s confession was voluntary, and . . . therefore, that is a question of fact for the jury to pass on.” Nor did the State Supreme Court review the evidence pertaining to the confessions and affirmatively hold them voluntary. In sustaining the petitioners’ convictions, one Justice dissenting, it went no further than to point out that, “The trial judge . . . held ... he could not say that the confessions were not voluntarily made and, therefore, permitted them to go to the jury,” and to declare that it, likewise, was “unable to say that the confessions were not freely and voluntarily made.” If, therefore," } ]

[ { "docid": "22681975", "title": "", "text": "shortly after midnight this 15-year-old lad was questioned by the police for about five hours. Five or six of the police questioned him in relays of one or two each. During this time no friend or counsel of the boy was present. Around 5 a. m. — after being shown alleged confessions of Lowder and Parks — the boy confessed. A confession was typed in question and answer form by the police. At no time was this boy advised of his right to counsel; but the written confession started off with the following statement: “we want to inform you of your constitutional rights, the law gives you the right to make this statement or not as you see fit. It is made with the understanding that it may be used at a trial in court either for or against you or anyone else involved in this crime with you, of your own free will and accord, you are under no force or duress or compulsion and no promises are being made to you at this time whatsoever. “Do you still desire to make this statement and tell the truth after having had the above clause read to you? “A. Yes.” He was put in jail about 6 or 6:30 a. m. on Saturday, the 20th, shortly after the confession was signed. Between then and Tuesday, the 23d, he was held incommunicado. A lawyer retained by his mother tried to see him twice but was refused admission by the police. His mother was not allowed to see him until Thursday, the 25th. But a newspaper photographer was allowed to see him and take his picture in the early morning hours of the 20th, right after he had confessed. He was not taken before a magistrate and formally charged with a crime until the 23d — three days after the confession was signed. The trial court, after a preliminary hearing on the voluntary character of the confession, allowed it to be admitted in evidence over petitioner’s objection that it violated his rights under the Fourteenth Amendment. The court instructed the jury to" }, { "docid": "22656020", "title": "", "text": "procedure. 206 F. Supp. 759 (D. C. S. D. N. Y.). The Court of Appeals, after noting the conflicting testimony concerning the coercion issue and apparently accepting the State’s version of the facts, affirmed the conviction. 309 F. 2d 573 (C. A. 2d Cin). II. It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U. S. 401; Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of vol-untariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. In our view, the New York procedure employed in this case did not afford a reliable determination of the volun-tariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment. We therefore reverse the judgment below denying the writ of habeas corpus. III. Under the New York rule, the trial judge must make a preliminary determination regarding a confession offered by the prosecution and exclude it if in no circumstances could the confession be deemed voluntary. But if the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts, the judge “must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also" }, { "docid": "8192597", "title": "", "text": "the Court should give them “special caution.” In the Haley case, the Supreme Court wrote: “What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law- — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of greatest instability which the crisis of adolescence produces.” Mr. Justice Fortas in writing the opinion for the Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed.2d 527 (1966), discussed at length the careful scrutiny courts must give to confessions or admissions where juvenile defendants are involved. Considering all the attendant facts and circumstances in this case, this Court is led to the firm conclusion that the confession given by Zachery to the State authorities on May 19, 1961, was not voluntary. While there is no credible evidence that violence or the threat of violence was used by the authorities in order to obtain Zachery’s confession, the evidence is more than convincing that the totality of the circumstances— the officers’ conduct in interrogating Zachery while they held him in custody and while his family and friends were not permitted to visit him or even know of his whereabouts, Zachery’s age, race, lack of education and the other circumstances herein related — had the effect of overbearing Zachery’s will and resulted in his involuntary confession to the authorities. The determination by this Court of the involuntariness of Zachery’s confession upon the facts as now presented is not based upon either the doctrine of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), or Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), since those eases were decided subsequent" }, { "docid": "22329591", "title": "", "text": "police garage where he identified the automobile used in the robbery. At about 5:00 P. M. on Monday he was taken to a police station and questioned. On Tuesday morning, October 27th, about 2 A. M. he made a confession at the police station. That confession was introduced at the trial. Shortly thereafter — about 4:00 A. M. — he was booked and put in a cell and soon arraigned. The trial court held a preliminary hearing on the voluntary character of the confession of October 27th before allowing it to be introduced in evidence. There is a question in the case whether the confession of October 23rd as well as that of October 27th was submitted to the jury, a question to which we will return. It is sufficient here to note that the trial court charged the jury that a confession should not be considered by them unless they found beyond a reasonable doubt that it was voluntary. And they were told that although the delay in arraignment was not conclusive, they might consider it in passing on the question of voluntariness. The Court of Appeals sustained the judgment of conviction by a divided vote. But the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the undisputed facts. Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 U. S. 219; Ashcraft v. Tennessee, 322 U. S. 143. If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant. Ashcraft v. Tennessee, supra, p. 154. And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury’s verdict. Lyons v. Oklahoma, 322 U. S. 596, 597. If the evidence alone is considered, there is serious doubt whether the confession made on the late afternoon of Fri day, October 23rd (the" }, { "docid": "22950713", "title": "", "text": "Mr. Justice Clark delivered the opinion of the Court. Petitioner has been convicted of first degree murder and sentenced to death by an Arizona court for the killing of one Janie Miscovich. He asks this Court to reverse his conviction on the ground that a confession received in evidence at his trial was coerced by fear of lynching, in violation of his rights under the Due Process Clause of the Fourteenth Amendment. The victim, proprietor of a grocery store in Kansas Settlement, Arizona, was killed while tending her store on the evening of March 16, 1953. No one witnessed the crime, but strong circumstantial evidence indicated that it occurred between 10 p. m. and 11 p. m., and that petitioner was responsible. He was arrested the next day under circumstances which lend credence to his assertion of a “putative lynching.\" The confession at issue, however, was not made until the day following the arrest, when he was taken before a Justice of the Peace for preliminary examination. After an initial determination of voluntariness, the trial judge in the Superior Court of Cochise County, Arizona, submitted the issue of coercion to the jury under instructions to ignore the confession as evidence unless it was found entirely voluntary. A general verdict of guilty was returned by the jury and accepted by the trial court. The Supreme Court of Arizona affirmed, 78 Ariz. 52, 275 P. 2d 408, and we denied certiorari. 350 U. S. 950 (1956). Petitioner then made application for habeas corpus in the United States District Court for the District of Arizona. After reviewing the entire record, the District Court denied the writ without a hearing. The Court of Appeals affirmed, 235 F. 2d 775, and we granted certiorari because of the seriousness of petitioner’s allegations under the Due Process Clause. 352 U. S. 1024. An exhaustive review of the record, however, impels us to conclude that petitioner’s confession was “the expression of free choice,” Watts v. Indiana, 338 U. S. 49, 53 (1949), and not the product of fear, duress, or coercion. The prosecution’s use of a coerced confession" }, { "docid": "22390572", "title": "", "text": "to testify. Compulsion by torture to extort a confession is a different matter.” And see Brennan, The Bill of Rights and the States, 36 N. Y. U. L. Rev. 761. We reiterated that view in Ashcraft v. Tennessee, supra; where we held that the principle of Bram v. United States, 168 U. S. 532, 562-563, was applicable to state proceedings. 322 U. S., at 154, n. 9. We said: “We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross-examination for thirty-six hours without rest or sleep in an effort to extract a ‘voluntary’ confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.” 322 U. S., at 154. (Italics added.) The application of these principles involves close scrutiny of the facts of individual cases. The length of the questioning (Spano v. New York, 360 U. S. 315), the use of fear to break a suspect (Malinski v. New York, 324 U. S. 401), the youth of the accused (Haley v. Ohio, 332 U. S. 596) are illustrative of the circumstances on which cases of this kind turn. The youth of the suspect was the crucial factor in Haley v. Ohio, supra, at 599-600: “What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of" }, { "docid": "22637462", "title": "", "text": "had confessed and implicated him. Both confessions were “voluntary,” in the only sense in which confessions to the police by one under arrest and suspicion ever are. The state courts could properly find an absence of psychological coercion. 3. Illegal detention. — Illegal detention alone is said to void these confessions. All three of the prisoners were held incommunicado at the barracks until the evening of June 8, when they were taken before a nearby magistrate and arraigned. This delay in arraignment was held by the trial judge to be unreasonable as a matter of law and a violation of the statutes of the State of New York. However, such delay does not make a confession secured during such period of illegal detention necessarily inadmissible as a matter of New York law. To delay arraignment, meanwhile holding the suspect incommunicado, facilitates and usually accompanies use of “third-degree” methods. Therefore, we regard such occurrences as relevant circumstantial evidence in the inquiry as to physical or psychological coercion. As such, it was received and the jury was instructed to consider it in this case. But the petitioners’ contention here goes farther — it is that the delayed arraignment compelled the rejection of the confessions. Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power, we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment. This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncoun-seled and illegally detained. Stroble v. California, 343 U. S. 181, 197; Lisenba v. California, 314 U. S. 219. From the foregoing considerations, we conclude that if the jury resolved that the confessions were admissible as a basis for conviction it was not constitutional error. V. If the Jury Rejected the Confessions, Could it Constitutionally Base a Conviction on Other Sufficient Evidence? Petitioners raised this question by a request for instruction to the jury that if it found the confessions to have been coerced it must return" }, { "docid": "22949240", "title": "", "text": "den. 327 U.S. 777, 66 S.Ct. 521, 90 L.Ed. 1005 (1946). Further, in view of the discussions in Jackson v. Denno, we think that this submission should be prefaced by an independent hearing by the court in the absence of the jury. This course — denominated by some as the “Massachusetts doctrine” —avoids grave questions of Constitutional law, such as whether the entitlement to a jury trial does not compel jury determination of the validity of a confession. The matter is so vital to due process it overrides the direction of Rule 30, F.R.Crim.P. that requests for instructions be presented at the close of the evidence or earlier. Nor was the failure to charge on voluntariness cured here by the inclusion of an admonition, quite correct in itself, of the jury’s duty and right to assay the believability of the witnesses. The law is unsparing in its exactions that a confession, even to be ponderable by the jury, must first be found representative of the free will of the confessor. To assure the accused complete protection, the procedure should substantially be this. On proffer of the confession, even though there be no objection, the court should let the jury withdraw, and then take evidence upon the confession and its factual setting. On this voir dire the defendant may testify without prejudice to his privilege not to take the stand before the jury, but he may be examined or cross-examined only with regard to the origin and character of the confession, not upon his innocence or guilt. The court will thereupon independently determine whether the confession is admissible. In this determination the District Judge will evaluate the evidence to ascertain whether, after resolving any conflicts therein, it convinces him beyond a reasonable doubt that the confession was voluntary. Unless the judge is so persuaded, the confession may not be admitted. If, however, he is satisfied beyond a reasonable doubt of its voluntariness, he should explicitly make and include in the record a finding of that fact. If upon this test the court holds that the confession may be put before the" }, { "docid": "10070741", "title": "", "text": "make the statement or not at his decision, that it could be used against him at trial, and that he was under no duress. It went on with the pre-printed question-and-answer, “[d]o you still desire to make this statement and tell the truth after having had the above clause read to you? A. Yes.” He then signed the statement. Id. at 598, 68 S.Ct. 302. The boy’s mother was denied access to him. When she brought fresh clothing for him, she found that his old clothes had been torn and bloodied. An attorney hired to represent him was denied access to him, although a newspaper photographer was allowed access to take his picture immediately after the 15 year-old signed the confession. He was held for three days before being taken before a magistrate. In court, he appeared bruised and skinned. Id. at 597-98, 68 S.Ct. 302. The Court reviewed the boy’s age, experience, the conditions of his interrogation and methods of the interrogating officers, and held that, “[i]f the undisputed evidence suggests that force or coercion was . used to exact the confession, we will not permit the judgment of conviction to stand, even though without the confession there might have been sufficient evidence for submission to the jury.” Id. at 599, 68 S.Ct. 302. On the other hand, in Michael C., the U.S. Supreme Court found that, given the totality of the circumstances, a 16 1/2 year old juvenile voluntarily and knowingly waived his Fifth Amendment rights under an interrogation in a murder case. There were nothing to indicate that he was unable to understand the nature of his actions; he had considerable experience with the police, having a record of several arrests. There was no indication that he was of insufficient intelligence to understand the rights he was waiving, or the consequences of that waiver. Further, he was not worn down by improper interrogation tactics or lengthy questioning by trickery or deceit. Michael C., 442 U.S. at 726-27, 99 S.Ct. 2560. He had had his Miranda rights explained to him and answered that he understood them. He had" }, { "docid": "22329596", "title": "", "text": "the corner, let him think he is going to get a shellacking.” If we take the prosecutor at his word, the confession of October 23rd was the product of fear — one on which we could not permit a person to stand convicted for a crime. But it is said that this coerced confession was not introduced in evidence, that it was submitted to the jury only insofar as it threw light on the voluntary character of the subsequent confessions, and that under the rule of Lyons v. Oklahoma, supra, p. 601, the adequacy of that instruction to the jury is solely for the state courts to determine. We do not think, however, that Lyons v. Oklahoma, supra, fits this case. The confession of October 23rd was oral. Its details were not put in evidence. But Spielfogel, a witness for the prosecution, adverted to it in his testimony, saying that Malinski told “everything” at that time. A police officer testified on behalf of the prosecution to the same effect. The prosecutor referred to it in his summation in language which we have already quoted. He added that “Six o’clock in the evening after he (Malinski) was picked up, he told the whole thing.” When the confession of October 27th (which was a detailed confession taken down by a stenographer) was offered in evidence, a preliminary hearing was had. That hearing covered the voluntary character of the October 23rd confession as well as the October 27th confession. The trial court in its charge to the jury reviewed the events leading up to the confession of October 23rd — the prosecutor’s version, Malinski’s version. It then referred to the delay in arraigning Malin-ski, stating that the police claimed they were willing to arraign Malinski on the day of his arrest but that Malinski preferred to stay at the hotel with Spielfogel. It then charged: “Be that as it may, I charge you that it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay, and, further, that if a police officer failed or refused to" }, { "docid": "8192596", "title": "", "text": "upon advice of counsel, Zachery withdrew his pleas of not guilty and not guilty by reason of insanity and changed his plea to guilty; whereupon, the Court empaneled a jury, which heard evidence, found petitioner guilty of first degree murder, and fixed his sentence at life imprisonment. It is basic in our law that there is imposed upon law enforcement officers very high standards when exacting confessions from youthful offenders like petitioner Zachery. The Supreme Court of the United States in Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), reversed a conviction based upon a confession under circumstances very similar to those in this case. This principle has been reemphasized in several other cases. In Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, the Supreme Court reversed a conviction of a 15-year-old boy for murder where the conviction was based upon admissions and confessions and, in doing so, stated that where admissions and confessions of juveniles are obtained by law enforcement officers the Court should give them “special caution.” In the Haley case, the Supreme Court wrote: “What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law- — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of greatest instability which the crisis of adolescence produces.” Mr. Justice Fortas in writing the opinion for the Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed.2d 527 (1966), discussed at length the careful scrutiny courts must give to confessions or admissions where juvenile defendants are involved. Considering all the attendant facts and circumstances in this case, this Court is led to the firm" }, { "docid": "22681977", "title": "", "text": "disregard the confession if it found that he did not make the confession voluntarily and of his free will. But the ruling of the trial court and the finding of the jury on the voluntary character of the confession do not foreclose the independent examination which it is our duty to make here. Ashcraft v. Tennessee, 322 U. S. 143, 147-148. If the undisputed evidence suggests that force or coercion was used to exact the confession, we will not permit the judgment of conviction to stand, even though without the confession there might have been sufficient evidence for submission to the jury. Malinski v. New York, supra, p. 404, and cases cited. We do not think the methods used in obtaining this confession can be squared with that due process of law which the Fourteenth Amendment commands. What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a. m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from" }, { "docid": "22616849", "title": "", "text": "of liberty without due process of law. Brown v. Mississippi, 297 U. S. 278, 280, 286-287. When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U. S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U. S. 227. This is true even though the evidence apart from the confessions might have been sufficient to sustain the jury’s verdict. Malinski v. New York, 324 U. S. 401; see Lyons v. Oklahoma, 322 U. S. 596, 597. Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies or whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confessions by the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a use constitutes a denial of due process of law as guaranteed by the Fourteenth Amendment. In determining whether a confession has been used by the state in violation of the constitutional rights of a petitioner, a United States court appraises the alleged abuses by the facts as shown at the hearing or admitted on the record. Petitioner’s contention that he had a constitutional right to have his statements excluded from the record rests upon these admitted facts. He is an illiterate. He was held after arrest for five days before being charged with the crime for which he was convicted. He was not given a preliminary hearing until 18 days after his arrest. No counsel was provided for him in the period of his detention. The alleged confessions were taken prior to the preliminary hearing and appointment of counsel. There is no record of physical coercion or of that less painful duress generated by prolonged questioning. There is evidence that petitioner was told he could remain silent and that any statement he might make could" }, { "docid": "22375390", "title": "", "text": "then a wire recording of it was played to the jury. Under these circumstances we cannot say that the jury’s verdict could not have been based, at least in part, on the confession made in the District Attorney’s office. Since we take this view, we cannot merely “assume,” as did the state supreme court, that that confession was involuntary, but must go on to determine the question of voluntariness. Petitioner does not so much as suggest that the action of any officer during the taking of the confession was accompanied by force or threats. His sole contention is that the incidents in the park foreman’s office, coupled with the presence of nineteen officers in the District Attorney’s office, render the confession which he made in the latter office involuntary. This Court has frequently stated that, when faced with the question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession, it must make an independent determination on the undisputed facts. Malinski v. New York, supra, at 404, and cases cited; id., at 438 (dissenting opinion). We adhere to that rule. In the present case, however, we need not confine ourselves to the undisputed facts; for, even if we give petitioner the benefit of every doubt as to the alleged coercion, we do not think it can fairly be said that his confession in the District Attorney’s office was coercion’s product. Whatever occurred in the park foreman’s office occurred at least an hour before he began his confession in the District Attorney’s office, and was not accompanied by any demand that petitioner implicate himself. Likewise his statement to the officer while on the way to the District Attorney’s office was admittedly voluntary. In the District Attorney’s office, petitioner answered questions readily; there was none of the “pressure of unrelenting interrogation” which this Court condemned in Watts v. Indiana, 338 U. S. 49, 54 (1949). Indeed, the record shows that from the time of his arrest until the time of his trial, petitioner was anxious to confess to anybody who" }, { "docid": "22106405", "title": "", "text": "constitutional standards of due process, in recognition of their superior opportunity to appraise conflicting testimony, we give deference to their conclusions on disputed and essential issues of what actually happened. See note 2, infra Its duty compels this Court, however, to decide for itself, on the facts that are undisputed, the constitutional validity of a judgment that denies claimed constitutional rights. Controversies as to facts take various forms. The jury-may reach a verdict of guilty although they resolved some subsidiary fact in favor of the accused. In Gallegos’ case we do not know whether his assertions not directly contradicted as to questionable conditions of his Texas detention and examination were accepted as true by the jury. It is quite possible that the jury thought the confession voluntary even though it believed all of Gallegos’ testimony. As we cannot accept the verdict as a finding solely on disputed facts, we must weigh Gallegos’ uncontradicted testimony along with the undisputed facts. We are not free, as Nebraska was, tb leave to the jury determinations of facts upon which the admissibility of the statements is based. The issue of federal due process now tendered is to be considered only on uncontroverted facts. . The answer to the question presented depends upon whether there is a violation of the Due Process Clause of the Fourteenth Amendment from the admitted circumstances that the two confessions of September 23 and October 1 were given to police officers after arrest in Texas on September 19,1949, while no magistrate with supervisory power over the examinations was present and while the accused was without counsel. Circumstances surrounding the Texas, as well as the Nebraska, confession must be appraised because Nebraska introduced the Texas confession in evidence in the trial. The use of any confession obtained in violation of due process requires the reversal of a conviction even though unchallenged evidence, adequate to convict, remains. Malinski v. New York, 324 U. S. 401, 404. Both states require fugitives from justice to be promptly taken before a magistrate on arrest for extradition. Texas, Vernon’s Code of Criminal Procedure, Arts. 998, 999," }, { "docid": "22656021", "title": "", "text": "of the confession. Rogers v. Richmond, supra. In our view, the New York procedure employed in this case did not afford a reliable determination of the volun-tariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment. We therefore reverse the judgment below denying the writ of habeas corpus. III. Under the New York rule, the trial judge must make a preliminary determination regarding a confession offered by the prosecution and exclude it if in no circumstances could the confession be deemed voluntary. But if the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts, the judge “must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness.” Stein v. New York, 346 U. S. 156, 172. If an issue of coercion is presented, the judge may not resolve conflicting evidence or arrive at his independent appraisal of the voluntariness of the confession, one way or ohe other. These matters he must leave to the jury. This procedure has a significant impact upon the defendant’s Fourteenth Amendment rights. In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure, under which the jury passes on volun-tariness only after the judge has fully and independently resolved the issue against the accused, the judge’s con- elusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary. Moreover, his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record. In contrast, the New York jury returns only a general verdict upon the ultimate question of guilt or innocence. It is" }, { "docid": "22681976", "title": "", "text": "time whatsoever. “Do you still desire to make this statement and tell the truth after having had the above clause read to you? “A. Yes.” He was put in jail about 6 or 6:30 a. m. on Saturday, the 20th, shortly after the confession was signed. Between then and Tuesday, the 23d, he was held incommunicado. A lawyer retained by his mother tried to see him twice but was refused admission by the police. His mother was not allowed to see him until Thursday, the 25th. But a newspaper photographer was allowed to see him and take his picture in the early morning hours of the 20th, right after he had confessed. He was not taken before a magistrate and formally charged with a crime until the 23d — three days after the confession was signed. The trial court, after a preliminary hearing on the voluntary character of the confession, allowed it to be admitted in evidence over petitioner’s objection that it violated his rights under the Fourteenth Amendment. The court instructed the jury to disregard the confession if it found that he did not make the confession voluntarily and of his free will. But the ruling of the trial court and the finding of the jury on the voluntary character of the confession do not foreclose the independent examination which it is our duty to make here. Ashcraft v. Tennessee, 322 U. S. 143, 147-148. If the undisputed evidence suggests that force or coercion was used to exact the confession, we will not permit the judgment of conviction to stand, even though without the confession there might have been sufficient evidence for submission to the jury. Malinski v. New York, supra, p. 404, and cases cited. We do not think the methods used in obtaining this confession can be squared with that due process of law which the Fourteenth Amendment commands. What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the" }, { "docid": "22616848", "title": "", "text": "be coerced in determining his guilt. At the trial petitioner registered timely objection to use by the state of his purported confessions. The objection having been made, the trial judge immediately excused the jury and ordered a preliminary examination to determine whether or not the statements were voluntary. It was in this preliminary hearing, in which the petitioner and two police officers testified, that the admitted facts were first developed upon which petitioner rests this phase of his case. After hearing the testimony, the trial judge found that the petitioner’s statements were freely and voluntarily given and declared them to be competent. Upon recall of the jury, the state introduced the statements in evidence, objections again being noted. Although the petitioner chose not to take the stand in the trial of his cause, his counsel, while cross-examining the officers who had taken the challenged statements from the petitioner, developed again for the jury all the facts upon which petitioner now relies. A conviction by a trial court which has admitted coerced confessions deprives a defendant of liberty without due process of law. Brown v. Mississippi, 297 U. S. 278, 280, 286-287. When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U. S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U. S. 227. This is true even though the evidence apart from the confessions might have been sufficient to sustain the jury’s verdict. Malinski v. New York, 324 U. S. 401; see Lyons v. Oklahoma, 322 U. S. 596, 597. Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies or whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confessions by the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a" }, { "docid": "22375389", "title": "", "text": "matter of law under the circumstances shown,” petitioner’s confession in the District Attorney’s office was involuntary. The court felt, however, that the use of that confession “could not have affected the fairness of [petitioner’s] trial,” because petitioner “thereafter made at least five confessions, of materially similar substance and unquestioned admissibility, which were put in evidence,” and because “[i]t does not appear that the outcome of the trial would have differed” if that confession had been excluded. Therefore the court concluded that use of the confession had not deprived petitioner of due process. We take a somewhat different view. If the confession which petitioner made in the District Attorney’s office was in fact involuntary, the conviction cannot stand, even though the evidence apart from that confession might have been sufficient to sustain the jury’s verdict. Malinski v. New York, 324 U. S. 401, 402, 404 (1945); Lyons v. Oklahoma, 322 U. S. 596, 597, n. 1 (1944). That confession was a prominent feature of the trial. First a stenographic transcript of the confession was read, and then a wire recording of it was played to the jury. Under these circumstances we cannot say that the jury’s verdict could not have been based, at least in part, on the confession made in the District Attorney’s office. Since we take this view, we cannot merely “assume,” as did the state supreme court, that that confession was involuntary, but must go on to determine the question of voluntariness. Petitioner does not so much as suggest that the action of any officer during the taking of the confession was accompanied by force or threats. His sole contention is that the incidents in the park foreman’s office, coupled with the presence of nineteen officers in the District Attorney’s office, render the confession which he made in the latter office involuntary. This Court has frequently stated that, when faced with the question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession, it must make an independent determination on the undisputed facts. Malinski v. New" }, { "docid": "22950714", "title": "", "text": "judge in the Superior Court of Cochise County, Arizona, submitted the issue of coercion to the jury under instructions to ignore the confession as evidence unless it was found entirely voluntary. A general verdict of guilty was returned by the jury and accepted by the trial court. The Supreme Court of Arizona affirmed, 78 Ariz. 52, 275 P. 2d 408, and we denied certiorari. 350 U. S. 950 (1956). Petitioner then made application for habeas corpus in the United States District Court for the District of Arizona. After reviewing the entire record, the District Court denied the writ without a hearing. The Court of Appeals affirmed, 235 F. 2d 775, and we granted certiorari because of the seriousness of petitioner’s allegations under the Due Process Clause. 352 U. S. 1024. An exhaustive review of the record, however, impels us to conclude that petitioner’s confession was “the expression of free choice,” Watts v. Indiana, 338 U. S. 49, 53 (1949), and not the product of fear, duress, or coercion. The prosecution’s use of a coerced confession first led to this Court’s reversal of a state conviction in Brown v. Mississippi, 297 U. S. 278 (1936). Our resolution of similar claims in subsequent cases makes clear that “the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the ■ undisputed facts.” Malinski v. New York, 324 U. S. 401, 404 (1945). No encroachment of the traditional jury function results, for the issue of coercion, unlike the basic facts on which coercion is ascertained, involves the application of constitutional standards of fundamental fairness under the Fourteenth Amendment. See Brown v. Allen, 344 U. S. 443, 507 (1953) (concurring opinion). In each instance our inquiry must weigh the “circumstances of pressure against the power of resistance of the person confessing.” Fikes v. Alabama, 352 U. S. 191, 197 (1957), quoting Stein v. New York, 346 U. S. 156, 185 (1953). We turn then to the undisputed portions of the" } ]

[ { "docid": "6439052", "title": "", "text": "general rules of Camara and See, the Supreme Court carved exceptions in the cases of Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed .2d 87 (1972). In Donovan v. Dewey, — U.S. —, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), the Supreme Court succinctly stated the rule of those eases: “These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Id. at 2539. Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), re-em phasized the exception to the warrant requirement. Marshall held that absent consent a warrant was constitutionally required in order to conduct administrative inspections under § 8(a) of the Occupational Safety & Health Act of 1970 (OSHA), 29 U.S.C. § 657(a). The Court found that the “authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.” 436 U.S. at 323, 98 S.Ct. at 1825. Accordingly, the Court concluded that: “. .. a warrant was constitutionally required to assure a nonconsenting owner, who may have little real expectation that his business will be subject to inspection, that the contemplated search was ‘authorized by statute, and . . . pursuant to an administrative plan containing specific neutral criteria.’ ” Donovan v. Dewey, supra, 101 S.Ct. at 2539 (citing Marshall v. Barlow’s, Inc., supra, 436 U.S. at 323, 98 S.Ct. at 1825). It is within this framework of cases which we must consider the provisions of § 8. At the outset, we note that plaintiffs are commercial businessmen and establishments entitled to the traditional safeguards which the Fourth Amendment guarantees to the individual. See v. City" } ]

[ { "docid": "1453358", "title": "", "text": "asked to inspect [the defendant’s] locked storeroom, they were merely asserting their statutory right, and [the defendant] was on notice as to the identity and the legal basis for their action. [The defendant’s] submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder’s acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all.... In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute. Biswell, 406 U.S. at 313, 92 S.Ct. at 1596, 32 L.Ed.2d at 91-92 (emphasis in original) (footnote omitted). In subsequent related cases, various courts denominated this rule the “Colonnade-Biswell exception” to the Fourth Amendment prohibition of warrant-less searches. See, e.g., Joe Flynn Rare Coins Inc., v. Stephan, 526 F.Supp. 1275, 1285 (D.Kan.1981) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 314, 98 S.Ct. 1816, 1821, 56 L.Ed. 305, 312 (1978)). The Supreme Court in Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), succinctly stated the rule of those cases: These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. Id., 452 U.S. at 600, 101 S.Ct. at 2539, 69 L.Ed.2d at 270. Thus the Court recognized Congress’ powers to design inspection laws that sanction warrantless inspection searches of closely regulated enterprises; however, it also noted that “Congress had not expressly" }, { "docid": "21545099", "title": "", "text": "ed. 1983). The statute authorizes the inspection, not only of facilities which the Act specifically requires, but also of any mechanism which is necessary to avoid committing a violation. Without proper storage equipment, gasoline could escape and pollute the surrounding land and groundwater. This is prohibited by, inter alia, Wyo.Stat. § 35-11-301 (1988). Therefore, the Act authorized Gerber to inspect V-l’s tanks. B. Whether a Warrantless Search Pursuant to the Wyoming Environmental Quality Act Is Constitutional The warrant requirement of the Fourth Amendment applies to commercial premises. See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). An exception to this requirement has developed, however, for “pervasively regulated businesses],” United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972), or “ ‘closely regulated’ industries,” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978) (quoting Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 90 S.Ct. 774, 776, 25 L.Ed.2d 60 (1970)). To be reasonable, the warrantless inspection of such a business must meet the three-part test enunciated in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987): “First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be ‘necessary to further [the] regulatory scheme.’ Finally, ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be ‘sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’ In addition, in defining" }, { "docid": "22388529", "title": "", "text": "n. 20. rH hH I — i Applying the principle enunciated in this case, we necessarily conclude that Detective McNally’s reliance on the Illinois statute was objectively reasonable. On several occasions, this Court has upheld legislative schemes that authorized warrantless administrative searches of heavily regulated industries. See Donovan v. Dewey, 452 U. S. 594 (1981) (inspections of underground and surface mines pursuant to Federal Mine Safety and Health Act of 1977); United States v. Biswell, 406 U. S. 311 (1972) (inspections of firearms dealers under Gun Control Act of 1968); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) (inspections of liquor dealers under 26 U. S. C. §§ 5146(b) and 7606 (1964 ed.)). It has recognized that an inspection program may be a necessary component of regulation in certain industries, and has acknowledged that unannounced, warrantless inspections may be necessary “if the law is to be properly enforced and inspection made effective.” United States v. Biswell, 406 U. S., at 316; Donovan v. Dewey, 452 U. S., at 603. Thus, the Court explained in Donovan that its prior decisions “make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Id., at 600. In Donovan, the Court pointed out that a valid inspection scheme must provide, “in terms of the certainty and regularity of its application ... a constitutionally adequate substitute for a warrant.” Id., at 603. In Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978), to be sure, the Court held that a warrantless administrative search under § 8(a) of the Occupational Safety and Health Act of 1970 was invalid, partly because the “authority to make warrantless searches devolve[d] almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.” Id., at 323. In contrast, the" }, { "docid": "13461326", "title": "", "text": "1205, 1208 (9th Cir.1980) (“One of the recognized exceptions to the warrant requirement is for administrative searches of enterprises that traditionally have been closely regulated.”). In Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978), the Court observed that certain industries have had such a history of close governmental supervision that no reasonable proprietor entering into them could have a justifiable expectation of privacy. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the Court extended the pervasively regulated industry exception to industries without a long tradition of regulation where frequent unannounced inspections are essential to further an important governmental interest. Where the regulation involves a comprehensive and predictable governmental presence, the owner “is not left to wonder about the purposes of the inspector or the limits of his task.” 406 U.S. at 316, 92 S.Ct. at 1596. The Court has also noted that where the industry is closely regulated, the owner cannot help but be aware that the government will conduct periodic inspections for specific purposes. Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2538-39, 69 L.Ed.2d 262 (1981). The reasonableness of a search in a closely regulated industry does not depend on the existence of probable cause but rather on the “pervasiveness and regularity of the federal regulations.” 452 U.S. at 606, 101 S.Ct. at 2542. When a person chooses to engage in a closely regulated industry and to accept a license which is conditioned upon such warrantless intrusion and inspection, he does so with full knowledge of the restrictions on his privacy. He is also free not to submit to such regulation and warrantless inspection by declining to seek a federal permit. Biswell, 406 U.S. at 315-16, 92 S.Ct. at 1596. The Captains argue that the closely regulated industry exception does not apply to a warrantless administrative search unless it is expressly authorized by Congress. This argument was presented and rejected by the court in United States v. Rucinski, 658 F.2d 741 (10th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430," }, { "docid": "1453359", "title": "", "text": "cases, various courts denominated this rule the “Colonnade-Biswell exception” to the Fourth Amendment prohibition of warrant-less searches. See, e.g., Joe Flynn Rare Coins Inc., v. Stephan, 526 F.Supp. 1275, 1285 (D.Kan.1981) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 314, 98 S.Ct. 1816, 1821, 56 L.Ed. 305, 312 (1978)). The Supreme Court in Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), succinctly stated the rule of those cases: These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. Id., 452 U.S. at 600, 101 S.Ct. at 2539, 69 L.Ed.2d at 270. Thus the Court recognized Congress’ powers to design inspection laws that sanction warrantless inspection searches of closely regulated enterprises; however, it also noted that “Congress had not expressly provided for forcible entry in the absence of a warrant and had instead given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under [the controlling statute].” Biswell, 406 U.S. at 313, 92 S.Ct. at 1595, 32 L.Ed.2d at 91. The Court distinguished Biswell from Colonnade by concluding the Biswell search was not accompanied by unauthorized force. The Goffs assert Biswell requires that, after being denied entry to a business premises while making a warrantless regulatory inspection, the government agent must then obtain a search warrant based upon probable cause that meets the standard applicable in a criminal matter: the agent must show he has reasonable cause to believe that a violation of the Act occurred and that evidence of that violation may be found on the target business premises. This court finds nothing in Biswell to indicate the placement of so stringent a burden on a government agent attempting to conduct a regulatory inspection search. Rather, Biswell merely prohibits use of unauthorized force, that is, forcible entry" }, { "docid": "10048593", "title": "", "text": "Although we agree that drug and alcohol testing can be conducted without a warrant, we do not believe the case fits within one of the “carefully defined classes of cases,” Mancusi, 392 U.S. at 370, 88 S.Ct. at 2125, previously identified by the Supreme Court as reasonable without a warrant. The most relevant prior exception which is applicable in the eyes of FRA and the district court, is the administrative search. The district court specifically found that these regulations should be evaluated under the standards applicable to administrative inspections of pervasively regulated industries. See New York v. Burger, — U.S. —, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (automobile junkyard); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (mines); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1978) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor). The administrative search doctrine applied to closely regulated industries has undergone significant alterations over the years. In the first such case, the Court approved the reasonableness of warrant-less searches and seizures in the liquor industry because of the long history of Congressional regulation of the industry. Colonnade Catering, 397 U.S. at 75-77, 90 S.Ct. at 776-77. In Biswell, 406 U.S. at 315-16, 92 S.Ct. at 1596, the Court approved of warrantless searches conducted pursuant to the Gun Control Act not because of a deeply rooted history of federal regulation, but because of the need for flexibility and because the prerequisite of a warrant would frustrate the goals of inspection. The Court found that owners of businesses know they are subject to inspection from the time they choose to engage in a pervasively regulated business, thus there is only a limited threat to expectations of privacy. Id. at 316, 92 S.Ct. at 1596. The Court has further explained, in a case treating inspection of mines, that a congressionally established regulatory scheme and a comprehensive and defined federal regulatory presence lets the owner of commercial property know that his property will be periodically inspected. Dewey, 452" }, { "docid": "15917357", "title": "", "text": "expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. Id. at 599, 101 S.Ct. 2534 (citing United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)). In closely regulated industries, for example, warrantless administrative searches of commercial premises conducted pursuant to a regulatory scheme are constitutionally permitted if they meet three criteria: First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.” Donovan v. Dewey, 452 U.S., at 600, 101 S.Ct. 2534. For example, in Dewey, we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act — to detect and thus to deter safety and health violations. Id., at 603, 101 S.Ct. 2534. Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] pro-vid[e] a constitutionally adequate substitute for a warrant.” Ibid. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.... To perform this first function, the statute must be “sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Donovan v. Dewey, 452 U.S., at 600, 101 S.Ct. 2534. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be “carefully limited in time, place and scope.” United States v. Biswell, 406 U.S., at 315, 92 S.Ct. 1593. Burger, 482 U.S. at 702-03," }, { "docid": "13461325", "title": "", "text": "S.Ct. 280, 69 L.Ed. 543 (1924), the Supreme Court commented: “Under the common law and agreeably to the Constitution [a] search may in many cases be legally made without a warrant. The Constitution does not forbid search, as some parties contend, but it does forbid unreasonable search.” 267 U.S. at 146, 45 S.Ct. at 282. The Supreme Court has recognized that warrantless searches in closely regulated industries can be reasonable. The Court has held that warrantless inspections are reasonable if they are reasonably necessary to further important federal interests and the federal regulatory presence is sufficiently comprehensive and predictable that “the assurance of regularity provided by a warrant is rendered unnecessary.” Donovan v. Dewey, 452 U.S. 594, 599-602, 101 S.Ct. 2534, 2538-40, 69 L.Ed.2d 262 (1981). The Court has applied the exception where the business premises searched are part of an industry “long subject to close supervision and inspection.” Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S.Ct. 774, 776-77, 25 L.Ed.2d 60 (1970); see also United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.1980) (“One of the recognized exceptions to the warrant requirement is for administrative searches of enterprises that traditionally have been closely regulated.”). In Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978), the Court observed that certain industries have had such a history of close governmental supervision that no reasonable proprietor entering into them could have a justifiable expectation of privacy. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the Court extended the pervasively regulated industry exception to industries without a long tradition of regulation where frequent unannounced inspections are essential to further an important governmental interest. Where the regulation involves a comprehensive and predictable governmental presence, the owner “is not left to wonder about the purposes of the inspector or the limits of his task.” 406 U.S. at 316, 92 S.Ct. at 1596. The Court has also noted that where the industry is closely regulated, the owner cannot help but be aware that the government will conduct" }, { "docid": "20999507", "title": "", "text": "warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (mining); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (alcoholic beverages). In each of these cases, however, an act of Congress expressly authorized the terms and conditions of searches on specified premises. The rationale for not requiring a warrant in such a situation is that a statutory inspection program “in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant.” Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. In that way, there is assurance that the individual’s privacy interest and the government’s interest in law enforcement are properly balanced. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978) (“The reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each statute.”). The statutory authority claimed by the appellants for the searches challenged here states that the Board and its delegates are “vested with the power to enter the office, horse race track, facilities and other places of business” of any licensee to ensure compliance with the Act. Ill.Rev.Stat. ch. 8, § 37-9(c). Appellants contend that the dormitory rooms are “facilities” for purposes of the Act. We agree with the district court that this is not a reasonable reading of the statutory language. The provision specifically lists a series of places, ending with the catch-all “other places of business.” This concluding phrase effectively defines the earlier listed places as places of business. The statute in no way suggests that a residence may be searched. We agree with the district court that these on-track dormitory rooms must be considered the backstretchers’ “homes” for Fourth Amendment purposes. Appellants point out that the rooms are very small and located either adjacent to or above the stables in the backstretch of the track." }, { "docid": "10048594", "title": "", "text": "such case, the Court approved the reasonableness of warrant-less searches and seizures in the liquor industry because of the long history of Congressional regulation of the industry. Colonnade Catering, 397 U.S. at 75-77, 90 S.Ct. at 776-77. In Biswell, 406 U.S. at 315-16, 92 S.Ct. at 1596, the Court approved of warrantless searches conducted pursuant to the Gun Control Act not because of a deeply rooted history of federal regulation, but because of the need for flexibility and because the prerequisite of a warrant would frustrate the goals of inspection. The Court found that owners of businesses know they are subject to inspection from the time they choose to engage in a pervasively regulated business, thus there is only a limited threat to expectations of privacy. Id. at 316, 92 S.Ct. at 1596. The Court has further explained, in a case treating inspection of mines, that a congressionally established regulatory scheme and a comprehensive and defined federal regulatory presence lets the owner of commercial property know that his property will be periodically inspected. Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. Such an inspection program, in terms of certainty and regularity of application provides a constitutionally adequate substitute for a warrant. Id. In that case, rather than leaving the frequency and purpose of inspections to the unchecked discretion of government officers, the Act established a predictable and guided federal regulatory presence. Id. at 604, 101 S.Ct at 2541. When no such regulatory plan is built into the legislation regulating a specific industry, the Court has required a warrant as a condition of a reasonable search. Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (OSHA inspections not directed at a specific regulated industry; warrant necessary to demonstrate an inspection conforms to an established administrative plan). The most recent articulation of this exception to the warrant requirement emphasizes that warrant and probable cause requirements which fulfill the traditional fourth amendment standard of reasonableness have lessened application in the context of a closely regulated industry because the owner or operator of commercial premises in such an" }, { "docid": "21545100", "title": "", "text": "the warrantless inspection of such a business must meet the three-part test enunciated in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987): “First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be ‘necessary to further [the] regulatory scheme.’ Finally, ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be ‘sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’ In addition, in defining how a statute limits the discretion of the inspectors, ... it must be ‘carefully limited in time, place, and scope.’ United States v. Biswell, 406 U.S., at 315 [92 S.Ct., at 1596].” Id. at 702-03, 107 S.Ct. at 2644 (quoting Donovan v. Dewey, 452 U.S. 594, 600, 602, 603, 101 S.Ct. 2534, 2538, 2539, 2540, 69 L.Ed.2d 262 (1981)). The two major questions relevant to the constitutionality of Gerber’s search are whether V-l is pervasively regulated and whether the Act provides a constitutionally adequate substitute for a search warrant. 1. Whether V-l Is Pervasively Regulated A pervasively regulated industry is one which has “such a history of government oversight that no reasonable expectation of privacy could exist....” Marshall v. Barlow’s, Inc., 436 U.S. at 313, 98 S.Ct. at 1821 (citation omitted). “[T]he doctrine is essentially defined by ‘the pervasiveness and regularity of the ... regulation’ and the effect of such regulation upon an owner’s expectation of privacy.” New York v. Burger, 482 U.S. at 701, 107 S.Ct. at 2643 (quoting Donovan v. Dewey, 452 U.S." }, { "docid": "574327", "title": "", "text": "It is certainly true, as appellants point out, that the Supreme Court has sanctioned warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight. New York v. Burger, — U.S. -, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (junkyards); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (mining); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (alcoholic beverages). In each of these cases, however, an Act of Congress expressly authorized the terms and conditions of searches on specified premises. The rationale for not requiring a warrant in such a situation is that a statutory inspection program “in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant.” Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. In that way, there is assurance that the individual’s privacy interest and the government’s interest in law enforcement are properly balanced. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978) (“The reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each statute.”). The statutory authority claimed by the appellants for the searches challenged here states that the Board and its delegates are “vested with the power to enter the office, horse race track, facilities and other places of business” of any licensee to ensure compliance with the Racing Act. Ill.Ann.Stat. ch. 8, para. 37-9(c) (SmithHurd Supp.1987). Far from specifying the “terms and conditions” under which warrantless searches of dormitory rooms can be conducted, this statute does not even appear to authorize searches of these areas. Appellants contend that the dormitory rooms are “facilities” for purposes of the Racing Act. We agree with the district court that this is not a reasonable reading of the statutory language. The provision specifically lists a series of places, ending with the catch-all “other places of business.” This concluding phrase effectively defines the earlier listed" }, { "docid": "20999512", "title": "", "text": "living quarters and personal effects as extensively as they wish. Plainly, the agents have an unrestricted scope of search; requiring them to hand out receipts or consent forms does not affect or limit the agent’s discretion to undertake an exhaustive search of every personal effect in an individual’s room. Serpas v. Schmidt, 621 F.Supp. 734, 741 (N.D.Ill.1985). The regulatory scheme here thus falls short of adequately substituting for a warrant. As the Supreme Court explained in rejecting a warrantless search scheme in Camara v. Municipal Court, 387 U.S. 523, 532-33, 87 S.Ct. 1727, 1732-33, 18 L.Ed.2d 930 (1967), “[tjhis is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search.” Hence, we agree with the district court that neither the statute nor the regulatory scheme here is sufficient to except these searches from the general rule that searches conducted without the safeguard of a warrant are unreasonable and violate the Fourth Amendment, see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Finally, the appellants argue that the backstretchers impliedly consented to the searches by accepting occupation licenses conditioned upon compliance with Rules 322 and 25.19. We think that the district court approached this contention properly when it noted that “the issue is not whether consent can be implied, but whether, absent the condition, the challenged searches are constitutional.” Serpas v. Schmidt, 621 F.Supp. 734, 742 (N.D.Ill.1985). While it is true that those who enter highly regulated fields do so with notice of an administrative search scheme and that this affects their expectation of privacy, see Dewey, 452 U.S. at 600, 101 S.Ct. at 2539 (when regulation sufficiently comprehensive, owner “cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes”), it is also clear that “the legality of the search depends not on consent but on the authority of a valid statute.” Biswell, 406 U.S. at 315, 92 S.Ct. at 1596. As we have noted, these searches, standing alone, are unconstitutional." }, { "docid": "6227116", "title": "", "text": "registers. Constitutional bounds on government access to commercial premises and records have developed through a series of Supreme Court cases that start with the assumption that a search of private commercial property without proper consent is unreasonable under the Fourth Amendment unless the search is authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). An exception to the warrant requirement is recognized, however, in certain industries in which government regulation is pervasive. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (sale of alcoholic beverages); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (sale of firearms). The Colonnade-Biswell exception has been extended by the Supreme Court to the field of mine safety, Donovan v. Dewey, 452 U.S. 594, 602, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981), and by lower federal courts to businesses dealing in perishable commodities, see Wayne Cusimano, Inc. v. Block, 692 F.2d 1025, 1028 (5th Cir.1982), and to warrantless inspection of pharmacy records, United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 537 (8th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982); United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2d Cir.), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974). The Supreme Court has recently clarified that the Colonnade-Biswell exception to the warrant requirement does not depend solely on there being a long history of government regulation in a given field. While agreeing that a tradition of supervision militates against imposition of a warrant requirement, the Court has observed that “it is the pervasiveness and regularity of the federal regulation that ultimately determines whether a warrant is necessary.” Donovan v. Dewey, 452 U.S. at 606, 101 S.Ct. at 2542. Accord, State v. Kirkland, 655 S.W.2d 140, 141-42 (Tenn. 1983). As the Court" }, { "docid": "10768440", "title": "", "text": "privacy is legitimate in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring): “[Tjhere is a twofold requirement, first that a person have established an actual (subjective) expectation of priva cy, and second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. First, the warrantless administration of breathalyzer and urine tests to jockeys at the race track, proximate to race time does not, per se, violate the Fourth and Fourteenth Amendments. Although the Fourth Amendment generally requires a warrant based on probable cause issue before a search occurs, Terry, supra, 392 U.S. at 28, 88 S.Ct. at 1883, exceptions exist to this requirement when a legitimate governmental purpose makes the intrusion into privacy reasonable. SEC & Law Enforcement Emp., supra, 737 F.2d at 203. The state may conduct administrative warrant-less searches when “necessary to further a regulatory scheme and the ... regulatory presence is sufficiently comprehensive and defined____’.’ Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981). It is the pervasiveness and regularity of the regulatory scheme that ultimately determines whether a warrant is necessary to render an inspection program reasonable under the Fourth Amendment. Id. at 606, 101 S.Ct. at 2542. Warrantless administrative searches of commercial property have been found constitutional for firearms, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and liquor, Colonnade Catering Corp. v. United States, 397 U.S. 72-77, 90 S.Ct. 774-77, 25 L.Ed.2d 60 (1970), but not under the Occupational Health and Safety Act (OSHA). Marshall, supra. The Biswell and Colonnade cases: represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise ... when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of government regulation. Marshall, supra, 436 U.S. at 313, 98 S.Ct. at 1821. The New Jersey courts have consistently considered horse" }, { "docid": "555360", "title": "", "text": "less stringent standard of reasonable suspicion, require particularized suspicion' — that is, the officer must have some articulable basis to believe that the individual to be searched or seized has committed or is committing a crime. In contrast, a regulatory search is justified if the state’s interest in ensuring that a class of regulated persons is obeying the law outweighs the intrusiveness of a program of searches or seizures of those persons. Seslar, 996 F.2d at 1061 (emphasis in original). The Supreme Court has further distinguished a regulatory search of commercial property from “searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable,” holding that “legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment.” Donovan, 452 U.S. at 598, 101 S.Ct. 2534 (emphasis added). The Court has recognized that the “expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual’s home. This expectation is particularly attenuated in commercial property employed in ‘closely regulated’ industries.” New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (citation omitted); see also Donovan, 452 U.S. at 601-02, 101 S.Ct. 2534; Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Biswell, 406 U.S. 311, 313-17, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Seslar, 996 F.2d at 1061. There are “[c]ertain industries [that] have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor ...Burger, 482 U.S. at 700, 107 S.Ct. 2636 (quotations, citation omitted); that is, “when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation,” Marshall, 436 U.S. at 313, 98 S.Ct. 1816; see also Biswell, 406 U.S. at 316, 92 S.Ct. 1593 (noting that “[w]hen a [firearms] dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition" }, { "docid": "20999506", "title": "", "text": "of the horse-racing industry, the less than commodious quality of the on-track quarters and the backstretchers’ implied consent to the searches. We have no doubt that horse racing is and ought to be a pervasively regulated industry. But a history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous. As we noted in Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072, 1079 (7th Cir.1983), the degree and extent of past regulation comprise but a part, albeit a substantial part, of a determination of a “reasonable expectation of privacy” under the Fourth Amendment. Otherwise, no protections at all would be appropriate in closely regulated industries. The Fourth Amendment requires that a determination of the “reasonableness” of the intrusion be made. Evén in closely regulated industries, the inspection provisions still must be tailored to the state’s proper objectives, and they must minimize the dangers inherent in the unbridled exercise of administrative discretion. It is certainly true, as appellants point out, that the Supreme Court has sanctioned warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (mining); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (alcoholic beverages). In each of these cases, however, an act of Congress expressly authorized the terms and conditions of searches on specified premises. The rationale for not requiring a warrant in such a situation is that a statutory inspection program “in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant.” Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. In that way, there is assurance that the individual’s privacy interest and the government’s interest in law enforcement are properly balanced. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978) (“The reasonableness of a warrantless search ... will depend upon the specific" }, { "docid": "1453357", "title": "", "text": "the section, the defendant permitted the investigators to enter the storeroom where they found two sawed-off rifles the defendant was not licensed to possess. The defendant was indicted and convicted on charges arising from his unlawful possession of the rifles. The Court of Appeals reversed, holding that section 923(g) is unconstitutional under the Fourth Amendment because it authorizes warrantless searches of business premises, and the defendant’s “ostensible” consent was invalid. Biswell, 406 U.S. at 313, 92 S.Ct. at 1595, 32 L.Ed.2d at 91. The Supreme Court reversed the judgment of the Court of Appeals. The Court began its analysis by referring to Colonnade Catering Corp. v. United States, a case dealing with the statutory authorization for warrantless inspection of federally licensed dealers in alcoholic beverages. 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1968). Upon the Colonnade defendant’s refusal to allow inspectors to enter his premises without a warrant, the inspectors forcibly entered a locked storeroom and seized illegal liquor. Upholding the validity of the warrantless regulatory search, the Court reasoned: When the officers asked to inspect [the defendant’s] locked storeroom, they were merely asserting their statutory right, and [the defendant] was on notice as to the identity and the legal basis for their action. [The defendant’s] submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder’s acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all.... In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute. Biswell, 406 U.S. at 313, 92 S.Ct. at 1596, 32 L.Ed.2d at 91-92 (emphasis in original) (footnote omitted). In subsequent related" }, { "docid": "13461361", "title": "", "text": "regulated industry exception is a narrow one, one that neither the Supreme Court nor this court has ever embraced in the absence of explicit statutory authorization for the warrantless search scheme it purports to justify. Moreover, the regulated industry exception has never been used to justify warrantless surveillance schemes such as the one in this case. Until now, the exception has only applied to warrantless inspections of particular businesses on a periodic basis. The majority breaks new ground by applying the exception to warrantless surveillance schemes conducted for days and months at a time. In regulated industry cases, warrantless searches are still presumptively unreasonable and the government retains the burden of justifying its disregard for the warrant requirement. Marshall v. Barlow’s Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978). “The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” Id., at 312, 98 S.Ct. at 1820 (quoting See v. Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967)). In this case, the government has failed to meet its burden of justifying the warrantless intrusions which the challenged regulation authorizes. Under the pervasively regulated industry exception, a warrant may not be required “when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981). While planting government observers on fishing vessels for the duration of the expeditions may offer the most efficient method of policing the Act, enthusiasm for this enforcement technique should not obscure the essential constitutional requirement that the warrantless quality of such a procedure must be vital to the regulatory scheme. The government has not proffered any convincing explanation why waiver of the warrant requirement is essential to the enforcement" }, { "docid": "2124819", "title": "", "text": "not abuse its discretion in imposing sentence. CONCLUSION We find no error in the district court’s denial of the suppression motion and the imposition of sentence, nor do we find any impropriety in the prosecutor’s closing statements. Accordingly, Hall’s convictions and sentences are affirmed. AFFIRMED. . The government conceded that Hall had standing to bring the suppression motion. . Compare Marshall v. Barlow’s, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978) (noting that the Fourth Amendment’s protection of commercial property is based upon societal values that have their roots in the origin of the Amendment) with Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 1387, 63 L.Ed.2d 639 (1980) (noting that the Fourth Amendment's respect for the sanctity of the home is based on traditions firmly rooted in the origins of the Republic). . Donovan v. Dewey involved a federal mine inspector's attempt, pursuant to a federal regulation, to conduct a warrantless inspection of a stone quarry. Relying on a line of cases which permits the warrantless inspections of businesses which operate in a pervasively regulated industry, the Court found that the warrantless inspection provision of the regulation did not violate the Fourth Amendment. Warrantless inspections of businesses have been justified by the need to further urgent federal regulatory interest. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (warrantless inspection of gun dealers); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (permitting warrantless search of retail liquor dealers if authorized by Congress). This deviation from the Fourth Amendment's warrant requirement in the area of pervasively regulated industries stands in stark contrast to the Supreme Court's historical view of the relationship between the Fourth Amendment and the home. As then Justice Rehnquist noted, it is seriously doubtful that Congress could authorize Constitutionally permissible warrantless entries into private residences to further a strong interest in regulating a prohibited activity. See Donovan v. Dewey, 452 U.S. 594, 608, 101 S.Ct. 2534, 2543, 69 L.Ed.2d 262 (1981) (Rehnquist, J., concurring). ." } ]

[ { "docid": "15851601", "title": "", "text": "embodied in federal Civil Rights Acts of 1964, 1968 and 1972, the Pregnancy Amendment of 1978 and the Age Discrimination in Employment Act of 1967, as amended.... Tenn.Code Ann. § 4-21-101(a). All of these named federal statutes apply to state governmental entities which are employers, such as the EPB. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Freeman v. Michigan Dept. of State, 808 F.2d 1174 (6th Cir.1987). The EPB points to Tenn.Code Ann. § 29-20-201(a) which is the general grant of immunity for governmental entities. EPB also points to Tenn.Code Ann. § 29-20-104(a) which provides that with certain exceptions, not here applicable, “all other acts or statutes in conflict with the provisions of this chapter shall only be applicable to governmental entities exercising their rights not to come under the provisions of this chapter....” This appears to be a question of first impression. However, it is manifest that the clear above-cited language from the THRA evinces an unmistakable legislative intent to remove whatever immunity the EPB may have had under the GTLA. Moreover, it is unlikely that the discrimination which the plaintiff claims to have suffered is the kind of “injury” specified by Tenn.Code Ann. § 29-20-102, which has been held to encompass torts, but not contracts. Simpson v. Sumner County, 669 S.W.2d 657 (Tenn.App.1983). Race and age discrimination, which are actionable only by virtue of statutory fiat, are not really torts qua torts. Therefore, it appears that the Governmental Tort Liability Act (emphasis supplied) does not immunize governmental entities from THRA claims in the first instance. The other grounds cited by EPB in support of its motion to dismiss have now been rendered moot. Plaintiff concedes that she is not entitled to punitive damages under any of her causes of action. Since plaintiff has now acquired her right-to-sue letter from the Equal Employment Opportunity Commission, her Title VII claim is viable and will be considered by the Court. Jones v. American State Bank, 857 F.2d 494, 499 (8th Cir.1988); Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d Cir.1984); Wrighten v. Metropolitan Hospitals," } ]

[ { "docid": "3474323", "title": "", "text": "MEMORANDUM OPINION LEWIS, District Judge. Defendant, Manpower, Inc., terminated the employment of plaintiff, Carol Gilmore, on March 10, 1988. According to Manpower, Gilmore refused to alter her flagrantly insubordinate behavior despite having received repeated warnings from her superiors. In a three-count complaint filed against Manpower on November 21, 1988, plaintiff alleges that age discrimination, not the legitimate business reasons articulated by Manpower, motivated her discharge. Counts I and II assert violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Count III purports to assert a tort claim under Pennsylvania law for intentional infliction of emotional distress. This putative pendent claim arises from Manpower’s allegedly outrageous conduct in supervising and discharging plaintiff. On December 2, 1991, Manpower filed a motion for partial summary judgment (the “Motion”) with respect to Count III of the complaint. Manpower advances three arguments that support its Motion: (1) Pennsylvania does not recognize the tort of intentional infliction of emotional distress; (2) any such action, if recognized, is barred in this case by the Pennsylvania Workers’ Compensation Act; and (3) the facts of this case fail to constitute intentional infliction of emotional distress as a matter of law. Manpower’s Motion will be granted because plaintiff’s intentional infliction of emotional distress claim is barred by the exclusivity provision of the Pennsylvania Workers’ Compensation Act (“WCA”), 77 P.S. § 1, et seq. DISCUSSION Pennsylvania’s employers are generally immunized from employee lawsuits for most job-related injuries in return for being subjected to a statutory no-fault system of compensation for worker injuries. This statutory immunization is found in § 303(a) of the WCA which provides, in pertinent part: The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependent, next of kin or anyone else entitled to damages in any action at law. 77 P.S. § 481(a) (Purdon Supp.1991). Pennsylvania’s courts and federal courts sitting in Pennsylvania have affirmed that the WCA “provides the exclusive means by which a covered employee can recover against an employer" }, { "docid": "2266760", "title": "", "text": "Because, as the court has discussed above, Bonham has presented no evidence of this awareness, nor has she shown that Regions should have known of Luther’s possible incompetence, her claim for negligent retention must also fail. In so holding, the court need not address whether Bonham has satisfied the other elements of negligent retention. IV. CONCLUSION For the foregoing reasons, it is ORDERED as follows: (1) The motion for summary judgment, filed by defendant Regions Mortgage, Inc., on June 6, 2000, and amended on October 6, 20Q0, is granted in part and denied in part. (2) Summary judgment is entered in favor of defendant Regions Mortgage, Inc., and against plaintiff Sharon E. Bonham on all of plaintiff Bonham’s federal and state claims, with the exception of her age-discrimination claims, under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.A. §§ 621-634, and the Alabama Age Discrimination in Employment Act of 1997, 1975 Ala.Code §§ 25-1-20 through 25-1-29, involving the positions given to Joe Smart and Bill Stallings. The clerk of the court is DIRECTED to provide a copy of this order to counsel for all parties by facsimile transmittal. ORDER Jan. 19, 2001. This cause is now before the court on defendant Regions Mortgage, Inc.’s motion, filed January 8, 2001, to reconsider this court’s partial denial of summary judgment. Regions argues that the court erred in finding that there was sufficient evidence for a reasonable jury to believe that the legitimate, nondiscriminatory reason it proffered for not promoting plaintiff Sharon E. Bonham was pretext. Regions concludes, therefore, that summary judgment should be granted as to the remaining claims in this case. For the reasons stated below, this motion will be denied. Regions has argued that it did not promote Bonham because she lacked prior supervisory experience. The court found that three reasons which Bonham offered to discredit this reason would enable, but not require, a reasonable jury to conclude that this reason was pretext. First, the court found that Bonham presented evidence that the relevant decision maker, Rory Luther, after perusing her file during her promotion interview," }, { "docid": "351461", "title": "", "text": "MEMORANDUM OPINION AND ORDER VANARTSDALEN, Senior District Judge. Presently before the court are the motions of defendant, Smithkline Beckman (Smithkline), for partial summary judgment, to strike plaintiffs jury demand, and to bifurcate trial. After due consideration of the memoranda filed by both parties, I will deny all the motions except the motion for partial summary judgment on compensatory damages, and the motion to strike plaintiff’s jury demand under Title VII, for the reasons explained below. I. INTRODUCTION Plaintiff, Jean Welcker (Welcker), alleges that Smithkline discriminated against her based on her age and sex when it underpaid her, failed to promote her, terminated her, and refused to rehire her into a vacant position. Ms. Welcker has brought suit under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1982) (ADEA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (Title VII), the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1982), and the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, §§ 951-63 (Purdon 1964 & Supp.1990) (PHRA). Defendant has filed the current motions seeking summary judgment on plaintiffs claims for liquidated damages under the ADEA, for punitive damages under the PHRA, and for compensatory damages under the PHRA. Defendant also seeks to strike plaintiffs demand for a jury trial as it relates to her claims under Title VII and the PHRA, and to bifurcate the trial into a trial on liability and then, if liability is found, a trial on damages. Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate only if the moving party has demonstrated the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In making this analysis, the court must construe all facts and inferences in the light most favorable to the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir.1987). If a reasonable jury examining the evidence could find in favor of" }, { "docid": "10912127", "title": "", "text": "that Newman and Luhrs were employed by the City of Memphis. The Court finds, therefore, that Defendants cannot be held liable for the negligent acts that Newman and Luhrs allegedly committed because the City of Memphis has waived its immunity. Accordingly, the Court grants Defendants Luhrs’ and Newman’s motion to dismiss the negligence claims, Counts V and VIII. Based on the same statutes, Defendant Newman asserts that Plaintiffs claim for assault and battery should be dismissed. Newman maintains that the City of Memphis has waived its immunity for liability as to the alleged assault and battery committed by a City employee. As such, Newman asserts that, pursuant to Tenn.Code Ann. § 29-20-310(b), no claim can be brought against him for assault and battery because he was a governmental employee. In Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn.2001), the Court held that the governmental entity was not immune for negligence in failing to take reasonable precautions to protect the plaintiff from the foreseeable risk that she would be assaulted by the defendant’s staff member who was known to be physically aggressive. Limbaugh, 59 S.W.3d at 84. The Limbaugh Court based its decision on the fact that Tenn.Code Ann. § 29-20-205 removes the government’s immunity for negligent acts committed by an employee except when the injury arises out of those torts enumerated in the statute. Id. Thus, because assault and battery was not a tort enumerated in the statute, the governmental entity could not claim immunity for its negligence. Id. The Court finds that Plaintiff in the instant action is precluded from suing Newman for assault and battery since the City of Memphis would not be immune from liability for the alleged assault and battery. The Court holds that Tennessee case law seems to preclude Plaintiffs claim against Newman for assault and battery because Tenn.Code Ann. § 29-20-205 does not provide immunity to a governmental entity based on an employee’s tort of assault and battery, and as such, Tenn.Code Ann. § 29-20-310(b) prohibits a claim from being brought against an employee when the immunity of the governmental entity is removed." }, { "docid": "15534740", "title": "", "text": "or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’ ” New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir.2006) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). The record discloses issues of material fact on the issue of defendants’ motivation. Thus, to the extent defendants sought summary judgment on the punitive damages prayer for relief as to plaintiffs § 1983 claim, it is denied. IY. CONCLUSION For the foregoing reasons, defendants’ Motion for Summary Judgment [Doc. # 63] is DENIED in part as to plaintiffs § 1983 First Amendment Retaliation claim, and related prayer for punitive damages, and GRANTED in part as to all other claims. All claims against defendant Hughes are dismissed. IT IS SO ORDERED. . Although plaintiff has abandoned all claims but her § 1983 claim, the Court nevertheless also notes that defendants’ arguments as to these claims may well have been meritorious. As to plaintiff's Title VII sex discrimination claim, plaintiff did not exhaust her administrative remedies — a precondition to filing suit in federal court (see Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir.2000)) — as her charge to the Equal Employment Opportunity Commission only mentioned age and retaliation. To the extent plaintiff asserts an age discrimination claim (it is not clear whether she does although her complaint references her age and, in its conclusion, claims defendants engaged in age discrimination), age is not a protected class under Title VII and plaintiff does not assert a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Lastly, plaintiff’s CFEPA claim is barred by the Eleventh Amendment as the State has consented only to suits brought in Connecticut Superior Court. See Walker v. Conn., 106 F.Supp.2d 364, 370 (D.Conn.2000) (Burns, J.) (\"The State has waived immunity, but only as to cases brought in the Superior Court.”) (citing Conn. Gen.Stat. § 46a-99). Further, plaintiffs CFEPA claim against the individual defendants must be dismissed because CFEPA \"does not impose liability on" }, { "docid": "19713147", "title": "", "text": "claim of discrimination. Similarly, plaintiff has alleged facts sufficient to establish Katsorhis’s individual liability under the HRL. She claims that he selected her name as one of the seven to be terminated, id. at 20, that she made him aware of her age in the process of seeking reinstatement and that he refused her request for reinstatement, id. at 25, that he played a role in the rehiring of as many as five of the six other employees terminated from the Sheriffs Office, and that he offered plaintiff what may have been a pretextual reason for her termination (i.e., “budgetary constraints”), id. at 22. The preceding conclusions notwithstanding, plaintiff must still prove at trial that these acts of which she complains were in fact motivated by age and/or sex discrimina1 tion. That she was terminated and then could not secure other employment with the City of New York, even if attributable entirely to the acts of the individual defendants, does not suffice to prove them liable for violations of the HRL absent that further showing. For the reasons set forth above, the defendants’ motion to dismiss the individual claims against Mastro and Katsorhis under the New York State Human Rights Law is DENIED, without prejudice to renewal following completion of discovery. D. Defendants seek to dismiss the Office of Sheriff, the Office of the Mayor, the Department of Finance, and the Department of Personnel on the ground that none are suable entities, see Defs.’ Mem. of Law in Supp. at 19-21. Plaintiff conceded as much at oral argument and agreed to the dismissal of the individual city agencies, Tr. at 10-11. The defendants’ motion to dismiss plaintiff’s claims against the Office of the Sheriff, the Office of the Mayor, the Department of Finance, and the Department of Personnel under Title VII, the ADEA, the HRL, and the New York City Administrative Code is GRANTED. E. Plaintiff claims that under the City Law Mastro, Katsorhis, New York City and the Agencies are liable for age and sex discrimination, First Amended Compl. ¶¶ 59-88. Defendants ask the Court to dismiss these claims," }, { "docid": "19822104", "title": "", "text": "Junior High School provided a completely adequate, independent and sufficient basis for his dismissal. The court therefore finds that DCSD has put forth a legitimate, non discriminatory reason for Plaintiff’s termination, which Plaintiff has failed to show was pretextual. Accordingly, DCSD’s Motion for Summary Judgment on this claim is granted. ASSAULT AND BATTERY Plaintiffs Second Cause of Action against Johnson and DCSD alleges liability for assault and battery. Plaintiff alleges Johnson was acting as agent for the school district when he committed the alleged assault. DCSD is a governmental entity whose liability is limited by the South Carolina Tort Claims Act, S.C.Code Ann. § 15-78-10 et seq. Liability under the Act extends only for actions of employees acting within the scope of their official duties. The Act defines “scope of official duty” as “1. Acting in and about the official business of a governmental entity and 2. performing official duties.” S.C.Code Ann. § 15-78-30G). The court finds a complete absence of any evidence in the record to suggest that an after-school pickup basketball game conducted in a church gymnasium one mile from the school and attended primarily by church officials was official business of DCSD or that its employee participants were performing official duties. Accordingly, no liability exists under the Act and summary judgment to DCSD is appropriate on this claim. REMAINING STATE LAW CLAIMS AGAINST DCSD Disposition of the remaining claims is governed by traditional Rule 56, Fed.R.Civ.P., standards. Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Whenever the party defending against the motion bears the ultimate burden of proof on a material issue, the moving party need offer no proof and may rely upon deficits in the defending party’s evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of the party opposing summary judgment is satisfied only" }, { "docid": "13757623", "title": "", "text": "consideration of the case. The jury was repeatedly instructed that, to return a verdict in her favor, it must find that age was a determinative factor in the Company’s treatment and ultimate termination of Carter. This is clearly a correct statement of the law. See, e.g., Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993-94 (5th Cir.1996)(en banc). The district court also clearly instructed the jury that it was deciding only the age discrimination claim and that if they concluded that Carter was terminated for some other reason, it must return a verdict in favor of the Company. Thus, the court instructed the jury that “if you should believe ... that her termination was caused by gender discrimination, that is, they discriminated against her because of her sex, then you have to return a verdict for [defendant] because age would not be the cause.” The jury instructions, taken as a whole, accurately stated the law and the respective burdens of proof. Finally, the general verdict form was clearly proper because the jury had to decide only a single issue, whether the Company discriminated against Carter in violation of the ADEA. The district court did not err in denying defendant’s motion for new trial. B. Damages Issues. 1. The Company’s Liability for Liquidated Damages. The Company contends that, because there is insufficient evidence to support a finding that it willfully violated the ADEA, it is entitled to judgment as a matter of law on the liquidated damages award or, at least, to a new trial on damages. It argues that, on the slim evidence of age discrimination in this case, the award of punitive damages cannot stand. As expected, Carter claims that the award of liquidated damages was proper based on the substantial evidence she offered undermining the defendant’s pretextual explanation for her dismissal and on the decisionmakers’ knowledge of the applicability of the ADEA. This court has held that an award of liquidated damages under the ADEA “does not require proof that the employer acted with an evil motive, bad purpose, or intent to violate the ADEA.” Formby v. Farmers" }, { "docid": "19826343", "title": "", "text": "to a probability, perhaps a high probability, that after the initial call was placed the caller or the phone has somehow been incapacitated. In some percentage of cases involving this set of facts, a person is in need of emergency assistance. Because the “ultimate touchstone” of the Fourth Amendment is reasonableness, certainty is not required. We hold that it was objectively reasonable for the police in this situation, given the information they had, to enter the house. We decline to establish a per se rule for all 911 hang calls and instead rest our decision on the specific facts of this case. III. Plaintiff also appeals the denial of her motion to amend her complaint to add several state law claims. Plaintiff, however, appeals only the denial of permission to add her negligence claim based on the dispatcher’s failure to inform the officers on the scene that Johnson was bipolar and off his medication. Plaintiff asserts that if this information had been properly acted upon, the officers would not have entered the house and a specialized unit would have been called in to resolve the situation without violence. The district court denied the amendment of this claim as futile because of the City’s sovereign immunity. We agree and affirm. Ordinarily we review for abuse of discretion the district court’s denial of a motion to amend a pleading. Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir.2010). When the district court denies the motion because the amendment would be futile, however, we review de novo. Id. Tennessee codified its sovereign immunity law in the Tennessee Governmental Tort Liability Act (“TGTLA”). Tenn.Code Ann. § 29-20-101 et seq. Section 29-20-201(a) provides that “[e]xcept as may be otherwise provided in this chap ter, all governmental entities shall be immune from suit for any injury which may result” from the exercise of government duties. “No party may bring a suit against ‘the State’ except ‘in such manner and in such courts as the Legislature may by law direct.’ ” Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn.2007) (quoting Tenn. Const, art. I," }, { "docid": "21287153", "title": "", "text": "evidentiary basis, as outlined above, for a reasonable trier of fact to doubt the Defendants’ proffered reasons for termination and ultimately find that racial bias was at least a motivating factor behind the Board’s employment decisions relating to Geras. In this regard, in addition to the discussion set forth above, the Court notes that, at her deposition, Cross could not recall any of the nondiscriminatory reasons proffered by the Board for terminating the Plaintiff. No'r could she recall relevant facts relating to the Plaintiffs job performance, despite conceding that tenure decisions are usually made based on performance evaluations and similar evaluative tools. In this regard, Cross could not recall the Plaintiff receiving outstanding performance evaluations from the Superintendent; she denied receiving a memorandum which highlighted Geras’s success in bolstering the District’s finances; and she denied any knowledge of the Standard and Poor’s rating agency, which provided an objective metric for assessing his job performance. In fact, despite testifying that she does not “keep up with all of those things,” Cross discredited the Superintendent’s assessment of Geras’s job performance as being fabricated and self-aggrandizing, and accused Dr. Garcia of often being dishonest However, at her deposition, Cross testi-. fied that she believed the Plaintiff had used the “N word” and asserted, as she had in her March 2012 cross-complaint, that he lacked respect for black women. Coupled with her inability to recall any performance-based reasons for termination, and taken together with the totality of the circumstances described above, the Court finds the evidence sufficient to allow a reasonable jury to conclude that the Board’s proffered non-dischiminatory reasons for terminating the Plaintiff, were not the only reasons, and that racial bias was a motivating factor. Accordingly, the Court denies the Defendants’ motion for summary judgment to the extent it seeks to dismiss the Plaintiffs claims against the District and the Board based on racial discrimination under Title VII. The Court also denies the Defendants’ motion for summary judgment to the extent it seeks to dismiss the Plaintiffs claims against all of the Defendants based on racial discrimination under the NYSHRL. C. The" }, { "docid": "20360776", "title": "", "text": "Lilly & Co., 990 F.2d 812, 819 (5th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). Rhodes v. Guiberson Oil Tools, 75 F.3d at 993-94. In the plaintiff’s Response to the defendant’s summary judgment motion, she offers five facts in support of her ADEA claim(s), at least two of which can only be said to speak to the dispárate impact theory. The remaining three are summarized as follows: 1) The physical fitness tests in effect from 1985 to 1990 made allowances for older employees; 2) The only officers who did not pass the test were over 50. (See Part II-C(l) above) . . 3) The woman who replaced the plaintiff as Juvenile Officer was 29 or 30 years old. Is this evidence “capable of proving that the real reason for his termination was discrimination based on age.” Nelson v. Boatmen’s, 26 F.3d at 801. Such evidence must include “conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude” of an extent “sufficient to permit the jury to infer that that attitude was more likely than not a motivation factor in the employer’s decision.” Nelson v. J.C. Penney, 75 F.3d at 345, quoting Nelson v. Boatmen’s, 26 F.3d at 800. Since some of the same people responsible for developing and implementing the Essential Functions test were the ones who reassigned, and eventually constructively discharged, the plaintiff, then the Court supposes it could be true that the standard set out above has been met, i.e., the development and implementation of the test could be construed to be “conduct ... by persons involved in the [decision to discharge her].” Accordingly, though the evidence pointed out to the Court thus far might be charitably called “thin,” the Court will deny the summary judgment motion as it relates to plaintiffs disparate treatment theory of age discrimination under ADEA. However, the Court will grant the motion as it relates to that part of Count III seeking redress for age discrimination under the Arkansas Civil Rights Act. The list of protected" }, { "docid": "7833554", "title": "", "text": "for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (citation omitted). A. Plaintiff’s Age Discrimination Claims under ADEA (Count I) and NJLAD (Count II) Because the proof requirements in a disparate treatment age discrimination case are the same under the ADEA and NJLAD, the Court will consider the first two counts of the Complaint together. In this connection, plaintiff claims that her employer’s decision to require plaintiff to return to full-time status was motivated by age-based discriminatory animus. The substantive provision of the ADEA provides in pertinent part: It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms conditions or privileges of employment because of such individual’s age. 29 U.S.C. § 623(a)(1). Plaintiffs theory of liability appears to be that her status as a short-week worker was a “term, condition or privilege of employment” at Chubb, and that her employer’s conduct in requiring her to relinquish her short-week worker status was an “adverse employment action” sufficient to trigger potential liability under the ADEA. We will analyze plaintiffs proofs according to our understanding of the nature of her claim. Defendants make the following arguments in support of dismissal of plaintiffs ADEA and NJLAD claims: (1) dismissal of Counts I and II as against Nadbielny is required because there is no individual liability under the ADEA and NJLAD; (2) plaintiff has produced insufficient evidence that she was qualified for her position; and (3) plaintiff has adduced insufficient evidence that the proffered reason that Chubb required plaintiff to return to work full time was a pretext, or cover-up, for age discrimination. We will address each argument in turn. First, we agree that the ADEA and NJLAD claims, to the extent that they are brought against Nadbielny, must be dismissed with prejudice. While it appears there is no Third Circuit precedent specifically addressing the issue of individual liability under the ADEA, numerous district courts within this circuit" }, { "docid": "22920727", "title": "", "text": "Lamont was not sure when she eventually became aware that the complaint was directed against her. Second, defendants succinctly contend: “The reason for the more than annual evaluations and the reason for the transfer were simply the result of [plaintiff’s] poor job performance.” Defendants also argue: “Lateral transfers are a common management tool utilized to best harmonize the needs of the employer with the skills of the employee, to the benefit of both. A lateral transfer, for legitimate reasons, is not an act of punishment.” These articulations were sufficient to shift the burden back to plaintiff to show that defendants’ proffered reasons were merely pretextual. Plaintiff’s evidence offered to establish her prima facie case of retaliation also was applied to show that defendants’ explanations were pretextual. The jury was thus presented with the question of whether plaintiff’s transfer was a consequence of her filing grievances and complaints against defendants or whether the timing of the transfer was merely coincidental and the transfer was in fact motivated by legitimate management reasons. Although the jury might have been entitled to decide otherwise, the jury was entitled to find retaliation because we believe there was substantial evidence of retaliation. It certainly was more than a scintilla. As a result, we hold that the district court should have entered judgment on the jury’s verdict and not entered judgment notwithstanding the verdict. See McKinley v. Trattles, 732 F.2d 1320, 1324 (7th Cir.1984) (noting that the standard for reviewing a judgment notwithstanding the verdict “is a demanding standard and, under it, there would perhaps not be many cases in which we could conclude that a jury behaved irrationally”). III. CONCLUSION In sum, we hold that the district court properly denied plaintiff’s motion for judgment notwithstanding the verdict on the issue of race discrimination. We also hold, however, that the district court improperly granted defendants’ motion for judgment notwithstanding the verdict on the issue of retaliation. Because the trial was bifurcated the jury decided the issue of liability only; it did not award damages, if any, to plaintiff on her successful claim of retaliation. Therefore, we remand" }, { "docid": "3090034", "title": "", "text": "and answered by a subordinate officer, if the subordinate officer can respond adequately to the purported problem. Sheriff Langston would typically never see or read the letter. B. Procedural Background Vaughn, as personal representative of Blount’s estate, filed suit under 42 U.S.C. § 1983 against Greene County; Sheriff Langston, both individually and in his official capacity; and ten unnamed defendants as officers and employees of the Greene County Sheriffs Department. Vaughn alleges the defendants were deliberately indifferent to Blount’s serious medical needs, because (1) they failed to provide Blount with medical care and supervision for his known mental illness, and (2) Greene County failed to provide any meaningful policy of training Jail personnel to provide medical care to mentally ill persons in custody. The defendants moved for summary judgment, arguing, inter alia, Sheriff Langston was entitled to qualified immunity because he was not aware of Blount’s medical illness and an effective policy existed to provide medical treatment to inmates. Vaughn also filed a cross-motion for partial summary judgment on the issue of liability. The district court denied the defendants’ summary judgment motion and held Sheriff Langston was not entitled to qualified immunity, given the existence of “a question of fact regarding the Sheriffs knowledge or deliberate lack thereof.” The court also denied Vaughn’s cross-motion for partial summary judgment. ■. . . II. DISCUSSION A. Jurisdiction Over Interlocutory Appeals The defendants now bring this interlocutory appeal, arguing the district court erred in (1) denying their motion for summary judgment, and (2) holding ' Sheriff Langston is not entitled to qualified immunity. Vaughn also cross-appeals from the trial court’s denial of her motion for partial summary judgment on the issue of the defendants’ liability. Although a party generally cannot appeal a district court’s order denying summary judgment, Pool v. Sebastian County, Arkansas, 418 F.3d 934, 937 (8th Cir.2005), this court has limited authority to review the denial of qualified immunity, Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005). “Denials of summary judgment based on qualified immunity are immediately appealable to the extent the appeal seeks review of the purely legal determinations" }, { "docid": "13757624", "title": "", "text": "only a single issue, whether the Company discriminated against Carter in violation of the ADEA. The district court did not err in denying defendant’s motion for new trial. B. Damages Issues. 1. The Company’s Liability for Liquidated Damages. The Company contends that, because there is insufficient evidence to support a finding that it willfully violated the ADEA, it is entitled to judgment as a matter of law on the liquidated damages award or, at least, to a new trial on damages. It argues that, on the slim evidence of age discrimination in this case, the award of punitive damages cannot stand. As expected, Carter claims that the award of liquidated damages was proper based on the substantial evidence she offered undermining the defendant’s pretextual explanation for her dismissal and on the decisionmakers’ knowledge of the applicability of the ADEA. This court has held that an award of liquidated damages under the ADEA “does not require proof that the employer acted with an evil motive, bad purpose, or intent to violate the ADEA.” Formby v. Farmers and Merchants Bank, 904 F.2d 627, 631 (11th Cir.1990). In that case, the court held that the jury’s rejection of the defendant’s pretextual explanation for its adverse employment action combined with the defendant’s knowledge that the ADEA prohibited age discrimination sufficed to support an award of punitive damages. Id. at 632. Given that those same two factors are also clearly present in this case, the jury’s award of such damages will not be disturbed. 2. Carter’s Mitigation of Her Damages. The Company also faults the award for the harm she experienced because the evidence shows that Carter did not properly mitigate her damages. It argues that, although she obtained comparable employment with Intellect Computer Services (“Intellect”) shortly after being terminated by Decision-One, she quit that position three months later to accept a consulting position with IBM, for which she was never paid any wages. For this reason, it says that her back pay award on the age discrimination claim must be reduced to $79,677.43 on remand. According to Carter, the evidence shows that she took" }, { "docid": "11249878", "title": "", "text": "resulting damages.” Alam 819 F.Supp. at 911 (citing Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287 (1989)). Barach argues that this claim should be dismissed because it fails on the last two elements, and that Churchill has not alleged that Baraeh’s act was the proximate cause of her termination. Barach’s argument is based upon the pleadings in another case before this Court, Churchill v. Continental Airlines, Inc., (CV-S-93-724-PMP (LRL)), where Churchill alleges that she was terminated from her employment with Continental because of her age in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. Barach argues that because Churchill’s theory of liability in her action against Continental is that Continental terminated her because of her age, Barach’s letter could not have proximately caused the termination of her employment in any sense. In response to Barach’s argument, Churchill confirms that her claim in the case at bar is that “Mr. Barach’s letter was utilized by Continental as part of their calculated scheme to acquire evidence and data to terminate Plaintiff as a pretext for unlawful discrimination on the basis of her age.” .Plaintiffs Opposition (# 17), at 8. Thus, it is clear that Churchill’s theory of causation is that Continental terminated her because of her age, and that as part of their scheme they used letters such as Mr. Barach’s to justify their allegedly unlawful activities. Under such a theory it is apparent that Churchill cannot maintain her tortious interference claim against Barach. It is fundamental in the law of torts “that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” W. Page Keeton et ah, Prosser and Keeton on the Law of Torts § 41, at 263 (5th ed. 1984). Here, Churchill’s allegations reveal that it was the actions of Continental rather than Barach which actually caused her termination. Churchill, therefore, does not allege facts which indicate that Barach’s actions were either the actual or proximate cause of her damage. Consequently, Barach’s Motion to Dismiss must be granted" }, { "docid": "3686872", "title": "", "text": "and defamation. The basis for this motion is Tennessee’s Governmental Tort Liability Act, as codified at T.C.A. § 29-20-103, et seq. As courts in this District have read the Act, it appears to place exclusive original jurisdiction for claims arising under it with the state courts. Beddingfield v. City of Pulaski, Tennessee, 666 F.Supp. 1064, 1067 (M.D.Tenn.1987). Accordingly, the Court will grant Defendants’ motion to dismiss pendant state law claims as to the City of Springfield and Officers Uffelman, Benton, and Gregory in their official capacities. The Tennessee Governmental Liability Act addresses the liability of governmental entities only. Its jurisdictional limitations do not apply to persons sued individually. Accordingly, the officers may be subject to personal liability in this Court for violations of both state and federal law arising from a common nucleus of operative facts. Judicial efficiency will he served by hearing, in a single court, all of the claims arising out of the events of June 3, 1989. Therefore, the claims brought against Officers Uffelman, Benton, and Gregory individually will remain. CONCLUSION The Court finds that, although defendant Uffelman may be subject to suit in his official capacity as director of the 19th Judicial District Drug Task Force, Plaintiffs failure to allege that the governmental units making up the Task Force have received notice and an opportunity to respond requires dismissal of the official capacity suit against Uffelman. Barbara Timberlake did have a particularized and clearly established right to be free from the search and seizure visited upon her. Moreover, taking the facts most favorably for the Plaintiff, it can be concluded that the roadside strip search was conducted in an unreasonable and outrageous manner. A reasonable jury could find from these facts that the strip search shocks the conscience. Defendant Uffelman, in his individual capacity, may be held liable as the director of the Task Force for authorizing and approving of the unconstitutional search and seizure of Timberlake. A jury could conclude from the facts that Uffelman’s conduct implicitly authorized the unconstitutional strip search and was a cause of Timber-lake’s injury. The City of Springfield, while not" }, { "docid": "1738634", "title": "", "text": "v. Studs. Taking a Right Stand, Inc., No. E2007-469-COA-R3-CV, 2007 WL 4232918, at *4 (Tenn.Ct. App. Dec. 3, 2007). If the defendant articulates such a reason, the burden of proof shifts back to the plaintiff to show that defendant’s proffered reasons are pretextual or not worthy of belief. Id. “To meet this burden, a plaintiff must show by admissible evidence either ‘(1) that the proffered reason has no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate the discharge.’ ” Id. (citation omitted). Defendant contends that Plaintiff will not be able to proffer evidence that her complaints about Drake’s alleged harassment and discrimination were the sole cause of her termination. (Docket Entry No. 36 at 20). Defendant further argues that “[a]ccording to Plaintiff, Defendant terminated her based on retaliation, national origin discrimination, and her age ... [t]hus, not even [she] believes that her complaints about discrimination and harassment were the exclusive' basis for her termination.” (Id.). The Court finds that Plaintiff is merely-proceeding on alternative theories, and there is sufficient evidence for a jury to conclude that the reason for her termination, whether the sole or substantial factor, was related to her engaging in protected activity. Accordingly, summary judgment will be denied as to Plaintiffs retaliatory discharge claims under the TPPA and Tennessee common law. D. Discrimination/Harassment Claims 42 U.S.C. § 1981 Discrimination Claim Plaintiff contends she was subjected to a “continuing and on-going campaign of discrimination in the workplace at Vanderbilt because of her alienage.” (Docket Entry No. 39 at 12). The Section 1981 claim is analyzed identically to a claim brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Newman v. Federal Express Corp., 266 F.3d 401, 406 (6th Cir. 2001) (“Section 1981 claims are analyzed under the Title VII McDonnell Douglas/Burdine frame work.”). Plaintiff has not produced any direct evidence of alienage discrimination. Therefore, in the absence of direct evidence, Plaintiffs claim is analyzed under the familiar evidentiary framework for cases based on circumstantial evidence set forth in McDonnell Douglas" }, { "docid": "4304446", "title": "", "text": "ALJ also found that the Debtor’s “proffered explanations for the [Plaintiffs] discharge” were not credible and therefore the Debtor failed to satisfy his burden to prove that his termination of the Plaintiff was motivated by “legitimate, nondiscriminatory reasons.” The ALJ also found that the Plaintiff satisfied her burden of proving her retaliation claim by showing that she engaged in a protected activity, the Debtor was aware that she participated in this activity, she suffered an adverse employment action, and there was a causal relationship between the protected activity and the adverse action. The ALJ found a causal link between her complaints of discrimination and her termination, and also found that the Debtor did not satisfy his burden of proving that his actions were motivated by legitimate, non-discriminatory reasons. (ALJ Decision at 11). On August 8, 2011, a judgment in the amount of $244,665.05 was entered against the Debtor, his law firm and Mr. Sanders, jointly and severally (“Judgment”). The Judgment, with interest, included $222,041.49 attributable to lost wages and $22,623.56 attributable to mental anguish. PROCEDURAL HISTORY The Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code on December 22, 2011, and the case was converted to chapter 11 on March 28, 2012. The Debtor seeks to discharge his personal liability on the Judgment in this bankruptcy. In this adversary proceeding, the Plaintiff seeks to have the entire Judgment debt excepted from discharge pursuant to section 523(a)(6) of the Bankruptcy Code, based on the collateral estoppel effect of the underlying Judgment and the findings of fact upon which it is based. The Plaintiff filed a motion for summary judgment on May 29, 2012, and the Debtor filed a cross motion on July 6, 2012. A hearing was held on July 18, 2012 at which time this matter was taken under submission. This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Bankruptcy Rule 7052. JURISDICTION A proceeding to determine discharge-ability under section 523(a)(6) of the Bankruptcy Code is a core proceeding over which this Court has jurisdiction. See 28 U.S.C." }, { "docid": "20360777", "title": "", "text": "an extent “sufficient to permit the jury to infer that that attitude was more likely than not a motivation factor in the employer’s decision.” Nelson v. J.C. Penney, 75 F.3d at 345, quoting Nelson v. Boatmen’s, 26 F.3d at 800. Since some of the same people responsible for developing and implementing the Essential Functions test were the ones who reassigned, and eventually constructively discharged, the plaintiff, then the Court supposes it could be true that the standard set out above has been met, i.e., the development and implementation of the test could be construed to be “conduct ... by persons involved in the [decision to discharge her].” Accordingly, though the evidence pointed out to the Court thus far might be charitably called “thin,” the Court will deny the summary judgment motion as it relates to plaintiffs disparate treatment theory of age discrimination under ADEA. However, the Court will grant the motion as it relates to that part of Count III seeking redress for age discrimination under the Arkansas Civil Rights Act. The list of protected classes found at A.C.A. 16-123-105 does not include those over 40 or any other age group. D. Count II—Title VII and ACRA claims The defendants argue that they are entitled to summary judgment on plaintiffs claims that the defendants violated her rights against sex discrimination and retaliation protected by Title VII and the ACRA. More specifically, the plaintiff alleges that (1) she was treated differently, i.e., less favorably than the two men who did not pass the test, and (2) she was retaliated against for successfully suing the City in 1984 for sex discrimination. The Court finds that on both Title VII theories the plaintiff has put forth a prima facie case and the defendants have offered non-discriminatory reasons for their actions in each case. The Court has carefully considered the pleadings and exhibits and holds that both issues, at least in this case, are highly fact intensive. The. Court holds that the plaintiff will be allowed to put her Title VII claims before the jury, as well as her corresponding claims brought pursuant to" } ]

[ { "docid": "987539", "title": "", "text": "a subsequent date may have been the result of administrative inaction after the appellant had purportedly informed the housing office to initiate the necessary paperwork. These circumstances are inconsistent with the conclusion that the appellant withheld BAQ without the consent of the government or with intent to steal. Rather, they tend to establish that she failed to repay moneys owed to the government because of the failure of government officials to take collection action after appellant notified them to do so. See United States v. Mervine, 26 M.J. 482 (C.M.A.1988). In the absence of a fiduciary duty to account, a withholding of funds otherwise lawfully obtained is not larcenous. United States v. Ford, 30 C.M.R. 3 (C.M.A.1960); United States v. McFarland, 23 C.M.R. 266 (C.M.A.1957); United States v. Johnson, 30 M.J. 930 (A.C.M.R.1990). The providence inquiry also reveals that the military judge accepted appellant’s guilty plea after determining that she did not inform government officials each time her monthly pay statement indicated she had been paid BAQ. Indeed, the appellant’s willingness to admit guilt was expressly predicated on her belief that she had some legal duty to inform the housing office to stop the payments each time she received her pay statement. However, appellant’s willingness to admit guilt cannot make an otherwise defective plea provident. We have found no cases which hold that individuals who fail to inform military authorities of an overpayment of pay or allowances are criminally liable to prosecution under Article 121, UCMJ. We doubt that there is such a duty to account where the overpayment is not fraudulently induced by the recipient. See United States v. Castillo, 18 M.J. 590 (N.M.C.M.R.1984). We need not determine if that occurred here. The appellant’s statement that she reported the overpayments to the housing office on two occasions is inconsistent with mens rea and warrants rejection of her plea. We have considered the matters raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) and find them without merit. The findings of guilty of Specification 2, Charge II and Charge II are set aside and, in" } ]

[ { "docid": "3791633", "title": "", "text": "married. He intentionally failed to report this fact knowing that if he did so, he would no longer be eligible for government quarters. The appellant remained silent in order to continue to use services that he was not entitled to receive. We hold that, even though the appellant made no affirmative misrepresentation, his silence when his divorce became final, and his subsequent failure to correct a known misrepresentation when he had a duty to do so, constituted a false representation sufficient to establish that he wrongfully obtained services under false pretenses. We are satisfied that the appellant was fully aware that he no longer had the authority to occupy government housing and, by his silence and inaction, exhibited the requisite criminal intent, mens rea, to defraud. Therefore, we find that the appellant’s guilty plea to Specification 1 of Charge IV is provident; accordingly, there is no substantial basis in law or fact to disturb this guilty plea. See United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991); see also United States v. Eberle, 44 M.J. 374, 375 (1996). The remaining Grostefon matters raised by the appellant are also without merit. The findings of guilty and the sentence are affirmed. Senior Judge CAIRNS and Judge BROWN concur. . United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). . These allowances and expenses were of a total value of about $9,515.61, property of the U.S. Government. . Specification 2 of Charge I was previously dismissed pursuant to a government motion. . We should note that the military judge properly stated that she found the appellant guilty of the Specification of Charge III and of Charge III immediately after she incorrectly mentioned Charge III in announcing findings to Charge II. . This court previously indicated that it was \"cognizant of the theory that a wrongful obtaining may also be proven when an accused fails to correct a previous representation of status entitling him to additional allowances or payments.” United States v. Viverito, 34 M.J. 872, 875 n. 2 (A.C.M.R.1992). . Although these two cases deal with larceny by false pretenses under Article 121, UCMJ," }, { "docid": "11265710", "title": "", "text": "does not show whether appellant's processing for the dormitory room and meal card should have included some action to terminate the allowances or whether appellant had a duty to do that separately. From 20 October 1988 until 28 February 1990, he continued to receive both BAS and BAQ while residing in the dormitory and possessing a meal card. During his providency inquiry, appellant admitted that he knew he was being overpaid and that he was not entitled to either allowance while he was living in the dormitory and using a meal card. He also admitted that he never tried to stop his receipt of either allowance. He further admitted he should have returned the overpayment of allowances to the Air Force. Appellant did not admit the use of any false pretense to obtain the overpayments or BAQ or BAS. The stipulation of fact described the misconduct as larcenies by wrongful withholding of BAQ and BAS monies from the government. Trial counsel stated the government’s theory of larceny was wrongful withholding, and he specifically denied any reliance on a theory of obtaining by false pretenses. The military judge agreed and used the elements and explanation for wrongful withholding to explain the offenses to appellant and inquire into the factual basis for his pleas. Military Law of Larceny The basis of appellant’s argument lies in the antecedents of the various larceny theories included in Article 121, UCMJ, 10 U.S.C. § 921. Therefore, to resolve the issue, we must trace the origin of these larceny theories. Article 121, UCMJ combined the offenses of common law larceny, embezzlement, and obtaining property by false pretenses into one offense of larceny. United States v. McFarland, 8 U.S.C.M.A. 42, 23 C.M.R. 266 (1957); United States v. Buck, 3 U.S.C. M.A. 341, 12 C.M.R. 97 (1953); MCM, Part IV, paragraph 46c(1)(a) (1984). The purpose of the consolidation was to eliminate technical distinctions previously involved in drafting specifications to allege the different larceny offenses. INDEX AND LEGISLATIVE HISTORY: UNIFORM CODE OF MILITARY JUSTICE, at 1232 and 1244; LEGAL AND LEGISLATIVE BASIS MANUAL FOR COURTS-MARTIAL 1951, 273, 274. The consolidation" }, { "docid": "19031397", "title": "", "text": "BAQ/VHA entitlements from the United States; (2) That the entitlements belonged to the United States; (3) That the entitlements were of a value of $6,686.05; and (4) That the obtaining or withholding was with the intent permanently to defraud the United States of the use and benefit of the property or permanently to appropriate the property to the appellant’s use or the use of someone other than the United States. Manual for Courts-Martial, 1984 [MCM], Part IV, ¶ 46b(l). Considering the evidence in the light most favorable to the government, we find some evidence that the appellant, through his silence, obtained or withheld overpayments of BAQ/VHA which belonged to the United States. There is some evidence that the overpayments were in excess of $100.00. The circumstances were such that a reasonable fact finder could infer that the appellant intended to keep the allowances. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are convinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. We are not satisfied that the wrongfulness of the obtaining rose to the level of criminality required for a violation of Article 121. The appellee argues that the appellant was convicted of a wrongful obtaining, attempting thereby to distinguish this case from United States v. Watkins, 32 M.J. 527 (AC.M.R.1990). This theory of the wrongfulness of the obtaining is based on a perception of the appellant’s duty to report the overpayments to his command or the housing office. This Court perceives in this argument an internal inconsistency which creates a reasonable doubt as to the appellant’s guilt. At page 5 of the government’s brief, the appellee concedes that the appellant did not make any affirmative misrepresentations to obtain the BAQ/VHA. The appellee argues that the appellant’s silence constituted a false pretense, relying upon this Court’s decisions in United States v. Johnson, 39 M.J. 707 (N.M.C.M.R.1993), affirmed, 40 M.J. 318 (C.M.A.1994). In that case AA Johnson pleaded guilty to stealing BAQ/VHA, admitting that: (1) he had" }, { "docid": "11265709", "title": "", "text": "not in a fiduciary relationship. In support of this proposition he relies on Watkins, 32 M.J. at 529 and Castillo, 18 M.J. at 595. We agree. Facts Appellant was charged with and convicted of two specifications of larceny. One offense charged stealing over $100.00 of BAQ from 20 October 1988 to 28 February 1990. The other offense charged stealing over $100.00 of BAS during the same period. He was sentenced to a bad conduct discharge, confinement for 8 months, forfeiture of all pay and allowances, and reduction 'to airman basic. Upon his arrival at Holloman Air Force Base, New Mexico, appellant was given a room in the dormitory and a meal card for meals at the enlisted dining facility. In April 1987, he moved off-base and received BAQ and BAS. On 20 October 1988, he was directed to move back into the dormitory, was assigned a room and given another meal card. Although he was no longer entitled to either allowance, no action was taken to terminate his receipt of BAS or BAQ. The record does not show whether appellant's processing for the dormitory room and meal card should have included some action to terminate the allowances or whether appellant had a duty to do that separately. From 20 October 1988 until 28 February 1990, he continued to receive both BAS and BAQ while residing in the dormitory and possessing a meal card. During his providency inquiry, appellant admitted that he knew he was being overpaid and that he was not entitled to either allowance while he was living in the dormitory and using a meal card. He also admitted that he never tried to stop his receipt of either allowance. He further admitted he should have returned the overpayment of allowances to the Air Force. Appellant did not admit the use of any false pretense to obtain the overpayments or BAQ or BAS. The stipulation of fact described the misconduct as larcenies by wrongful withholding of BAQ and BAS monies from the government. Trial counsel stated the government’s theory of larceny was wrongful withholding, and he specifically denied any" }, { "docid": "11265720", "title": "", "text": "as a matter of law. United States v. Hart, 25 M.J. 143 (C.M.A.1987); Sicley, 20 C.M.R. at 126; United States v. Johnson, 30 M.J. 930 (A.C.M.R.1990); Article 66(c), UCMJ, 10 U.S.C. § 866(c). If the accused pleaded guilty and the evidence introduced and the accused’s guilty plea inquiry admissions are not adequate to establish the essential elements of larceny by wrongful taking, obtaining, or withholding, the plea will be improvident and must be set aside. Blackshire, at 502; Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 597; R.C.M. 910(c) and (e); MCM, Part IV, paragraph 46b (1984). Conclusion It is clear that the receipt or obtaining of military pay or allowances in excess of a particular military member’s entitlement is not larceny by wrongful withholding. We agree with our brethren in the Navy and the Army that the duty of a member of the armed forces to inform his service that he is receiving excess allowances or pay does not rise to the level of the fiduciary duty required for larceny by wrongful withholding. Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 595. Absent this fiduciary duty, a failure to return or report overpayment of pay or allowances does not constitute a larceny by wrongful withholding. Sicley, 20 C.M.R. at 125; Blackshire, at 502; Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 596. The military member will be indebted to the government for the overpayment and is obligated to make repayment, but such a debtor relationship and a civil liability does not equate to larceny. Mervine, 26 M.J. at 483; Watkins, 32 M.J. at 529; Johnson, 30 M.J. at 939 n. 8; MCM, Part IV, paragraph 46c(1)(b) (1984). Even if the overpayment is due to a misrepresentation by the military member, a wrongful withholding does not result without the required fiduciary or custodial relationship. Hubbard, 28 M.J. at 205; McFarland, 23 C.M.R. at 270; United States v. Watkins, 32 M.J. 527, 529 (A.C.M.R.1990); Castillo, 18 M.J. at 597. The criminal prosecution of larceny for receipt of excess pay or allowances should be based on the theory of" }, { "docid": "1191173", "title": "", "text": "Based on them, however, he was paid variable housing allowance (VHA) and basic allowance for quarters (BAQ) at the higher “with dependent” rate. He received some $3,600 more than he should have during the charged period. The prosecution maintained two theories to support the larceny charge. For the period 1 December 1986 through 3 November 1987, they argued that the larceny was effected by a wrongful withholding. For the remainder of the period, 4 November 1987 through 13 September 1989, the larceny was accomplished through a wrongful obtaining by false pretense. The appellant does not dispute the correctness of the conviction as to the latter period, which was proven by the false certification on 4 November 1987. Unpub. op. at 1-2 (emphasis added). In holding that the evidence was “insufficient to support” the conviction of larceny for the period of December 1, 1986, through November 3, 1987, “under a wrongful-withholding theory,” the Court of Military Review reasoned as follows: In this case, the government offered no evidence to show that Antonelli unlawfully obtained the funds he received from 1 December 1986 through 3 November 1987. The government also failed to prove that he had any duty to account for the money during that period; keeping pay to which one is not entitled may create a civil liability, but under the circumstances here, a conviction under an Article 121 withholding theory cannot be sustained. United States v. Ford, 12 USCMA 3, 30 CMR 3 (1960); United States v. Watkins, 32 MJ 527 (ACMR 1990). Unless the government shows that an overpayment was fraudulently induced, an individual who simply fails to inform authorities of an overpayment is not criminally liable under Article 121. United States v. Blackshire, [33 MJ 501] (AFCMR 1991) ]; see Watkins, 32 MJ at 529; United States v. Castillo, 18 MJ 590 (NMCMR 1984). Unpub. op. at 2-3. II In pertinent part, Article 121 prescribes: (a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article" }, { "docid": "12086716", "title": "", "text": "is distinguishable for two reasons. First, it is a wrongful withholding case. Various cases have held that convictions of larceny of BAQ and VHA cannot stand on such a theory. Dean; United States v. Castillo, 18 M.J. 590 (N.M.C.M.R.1984). Second, unlike appellant, Specialist Four Watkins made two attempts to stop the overpayment of allowances, thereby clearly demonstrating a lack of criminal intent for the offense of larceny. We note a similar scenario for some of the offenses in Viverito where the Army Court of Military Review set aside guilty findings for theft of BAQ where Major Viverito informed his finance office of the overpayment and put the funds in a separate account. Appellant’s expressed intent to keep the money forever, and thereby to exploit his situation for as long as possible, could not be more different. One other matter we must address is whether appellant’s plea to the eighth specification is provident where he indicated that he reported the loss of his entitlement to the allowances “about one week” before 1 April 1992. Record at 13-14. Specification 8 alleges a larceny from 1 March to 31 March in the amount of $392.43. Due to his disclosure about one week before the end of March, we do not believe he should stand convicted of larceny for the entire month. At that point he, like Watkins and Viverito, no longer had the requisite criminal intent to commit larceny. We will therefore only affirm a conviction of larceny up to 25 March 1992 and reduce the amount wrongfully obtained for the month to $300.87. In all other respects, we find his pleas to be provident. Issue II In his second assignment of error, appellant argues that the eight specifications under the larceny charge should be merged into one specification because they describe a continuous course of conduct of receipt of BAQ and VHA over 8 months. The Government chose to charge appellant with one specification for each of the 8 months because the allowances were paid on a monthly basis. What is substantially one transaction should not be made the basis for an" }, { "docid": "12086715", "title": "", "text": "us, appellant clearly admitted the following: 1) that he had a duty to report his divorce to PSD and thus his resulting loss of entitlement to BAQ and VHA after 16 August 1991; 2) that he intentionally failed to report this event to PSD until late March, 1992, and thereby failed to prevent overpayment of the allowances; 3) that his intent in remaining silent over nearly an 8-month period was to take advantage of the government’s reliance on his earlier representation that he occupied off-base civilian housing and to forever keep the money to which he was not entitled. Record at 8-9, 12-13. Even though appellant made no affirmative misrepresentation on or after 16 August 1991, his silence constituted a false representation sufficient to establish a wrongful obtaining through a false pretense, i.e., that he was still married and entitled to the BAQ and VHA. Appellant has cited United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990) for the proposition that because there was no fraudulent inducement on his part the findings cannot stand. However, Watkins is distinguishable for two reasons. First, it is a wrongful withholding case. Various cases have held that convictions of larceny of BAQ and VHA cannot stand on such a theory. Dean; United States v. Castillo, 18 M.J. 590 (N.M.C.M.R.1984). Second, unlike appellant, Specialist Four Watkins made two attempts to stop the overpayment of allowances, thereby clearly demonstrating a lack of criminal intent for the offense of larceny. We note a similar scenario for some of the offenses in Viverito where the Army Court of Military Review set aside guilty findings for theft of BAQ where Major Viverito informed his finance office of the overpayment and put the funds in a separate account. Appellant’s expressed intent to keep the money forever, and thereby to exploit his situation for as long as possible, could not be more different. One other matter we must address is whether appellant’s plea to the eighth specification is provident where he indicated that he reported the loss of his entitlement to the allowances “about one week” before 1 April 1992. Record at" }, { "docid": "12136289", "title": "", "text": "From December 1986 until September 1989, Senior Airman Antonelli received BAQ and VHA at the with dependent rate. Prosecution Exhibit 3 is a chart prepared by Tech Sergeant Gwendolyn Gordon, former chief of military pay at Lowry Air Force Base, showing how much excess BAQ the accused was drawing at the “dependent rate” versus the amount he was entitled to draw at the “single rate.” Prosecution Exhibit 4 is a similar chart for VHA. In addition to false official statements, the Government charged appellant with larceny of more than $100 during the period 1 December 1986 to 13 September 1989. Despite his not guilty pleas, court members convicted appellant of the false statement and larceny offenses. At appellant’s trial, the government relied upon a theory of larceny by wrongful withholding to support a larceny for the period 1 December 1986 through 3 November 1987. The government argued appellant committed larceny by wrongfully withholding BAQ and VHA payments in excess of the rate provided for a military member without dependents during this period. When appellant’s case first came before us, he contended that the government did not present sufficient evidence to support a wrongful withholding larceny conviction. We agreed and set aside the portion of appellant’s larceny conviction occurring pri- or to 4 November 1987. The United States Court of Military Appeals set aside the portion of our decision concerning appellant’s larceny conviction and returned the case to us for reconsideration. United States v. Antonelli, 35 M.J. 122 (C.M.A.1992). In returning the case, the Court asked us to take another look at appellant’s recertification documents and consider whether a wrongful withholding might arise from a bailment or wrongful conversion of the “with dependent” BAQ. II. Law and Analysis. The statutory basis for the current military law of larceny is Article 121, UCMJ, 10 U.S.C. § 921. Before enactment of Article 121, UCMJ, the Articles of War required allegation and proof of a specific theory of larceny. Enactment of Article 121 consolidated the offenses of common law larceny by trespass, embezzlement, and obtaining property by false pretense into one statutory offense of" }, { "docid": "12136288", "title": "", "text": "for $125.00 in the name of Jennifer Antonelli. Then effective March 1982, Senior Airman Antonelli started an allotment for Robin Goede at 151 Tahoe Place, San Raphael, California. In both cases the allotments were returned because Robin had moved from the address to which the allotments were directed. On 4 November 1987, Senior Airman Antonelli signed an Air Force Form 987 (Prosecution Exhibit 1) recertifying that he was providing adequate support for his daughter, Jennifer, which also allowed him to continue to draw BAQ and VHA at the with dependent rate. While facing the larceny charge and the false official statement charge of 4 November 1987, in this court-martial, Senior Airman Antonelli was directed to accounting and finance to take care of his BAQ recertification. Senior Airman Antonelli recertified his support for Jennifer on an Air Force Form 987 (Prosecution Exhibit 2) on 27 September 1989. From 1977 to January of 1990, Robin had not been paid child support by Senior Airman Antonelli for Jennifer, and since 1977 Jennifer never lived with Senior Airman Antonelli. From December 1986 until September 1989, Senior Airman Antonelli received BAQ and VHA at the with dependent rate. Prosecution Exhibit 3 is a chart prepared by Tech Sergeant Gwendolyn Gordon, former chief of military pay at Lowry Air Force Base, showing how much excess BAQ the accused was drawing at the “dependent rate” versus the amount he was entitled to draw at the “single rate.” Prosecution Exhibit 4 is a similar chart for VHA. In addition to false official statements, the Government charged appellant with larceny of more than $100 during the period 1 December 1986 to 13 September 1989. Despite his not guilty pleas, court members convicted appellant of the false statement and larceny offenses. At appellant’s trial, the government relied upon a theory of larceny by wrongful withholding to support a larceny for the period 1 December 1986 through 3 November 1987. The government argued appellant committed larceny by wrongfully withholding BAQ and VHA payments in excess of the rate provided for a military member without dependents during this period. When appellant’s case" }, { "docid": "11265723", "title": "", "text": "PERKINS at. 311. The difficulty arises in determining whether the military member had the required criminal intent at the time he obtained the overpayments. Rhyns, 31 M.J. at 926; see also Sicley, 20 C.M.R. at 127; Blackshire, at 502; Watkins, 32 M.J. at 529. If the member had forgotten he had made an earlier certification and that he was receiving additional pay or allowances because of it, the prior certification would be the effective, but not the intentional, cause of the obtaining. MCM, Part IV, paragraph 46c(1)(e); PERKINS, n. 93 at 311. In the present case, the entire theory of the government’s case was that appellant had stolen the BAQ and BAS monies by wrongfully withholding them. The mili tary judge used this theory in conducting the guilty plea inquiry and appellant did not admit to any offense other than larceny by wrongful withholding. We find appellant’s pleas to both specifications of larceny to be improvident. The findings of guilty to specifications 1 and 2 of the charge are set aside. A rehearing may be held. Judges RIVES and JAMES concur. . United States v. Dean, ACM 28805, 1990 WL 199938 (A.F.C.M.R. 21 November 1990). . Article 93 covered larceny or embezzlement of property other than that of the United States. Article 94 covered larceny or embezzlement of property of the United States. Prior amendments to both articles had eliminated the technical distinction between alleging larceny and em bezzlement by providing that either offense would be described by ‘‘larceny’’ or \"steals.” Articles of War, 41 Stat. 787, as amended by Act of 24 June 1948, Pub.L. No. 80-759, 62 Stat. 627; L. Alyea, Military Justice Under the 1948 Amended Articles of War, 57 (1949). . The 1951 Manual for Courts-Martial provided that a withholding could arise \"... even though initially the property had come lawfully into the hands of the person thus withholding it.” MCM, paragraph 200a(2) (1951). The 1969 Manual changed this provision to read \"Generally, this is so whether the person withholding the property acquired it lawfully or unlawfully.” MCM, paragraph 200a(2) (1969 Rev.) The same wording was" }, { "docid": "12086708", "title": "", "text": "DeCICCO, Judge: TMs case concerns whether appellant providently pleaded guilty to stealing Basic Allowance for Quarters (BAQ) and Variable Housing Allowance (VHA) where he was initially entitled to these allowances, then lost his entitlement, and simply remamed silent about the change m his status with the mtent to permanently keep the allowances to which he was not entitled. We hold that such pleas are provident under a theory of wrongful obtaming by false pretenses where an accused (1) admits he has a legal duty to correct a previous representation by notifying appropriate authorities; (2) fails to do so; and (3) has the requisite criminal mens rea at the time of the obtaming. United States v. Viverito, 34 M.J. 872, 875 n. 2 (A.C.M.R. 1992), pet. denied, 36 M.J. 76 (C.M.A.1992); United States v. Dean, 33 M.J. 505 (A.F.C.M.R.1991). Facts A special court-martial convicted appellant, m accordance with his pleas, of one specification of making a false official statement and eight specifications of larceny in violation of Articles 107 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 921. A military judge sentenced him to be reduced to pay grade E-l, to be confined for 90 days, and to be discharged with a bad-conduct discharge. The convening authority approved the sentence. Appellant assigns six errors for review. Appellant pleaded guilty to eight specifications alleged under Article 121, UCMJ, that he, during each of 8 months between 16 August 1991 and 31 March 1992, stole BAQ at the “with dependents” rate and VHA of a specified dollar value. At trial, the military judge advised him of the elements of these offenses as follows: -that during the dates alleged, he wrongfully obtained certain property, that being BAQ with dependents rate and VHA, from the possession of the Government; -that this property belonged to the U.S. Government; -that the specific dollar amount taken was that alleged in the specifications; and -that the obtaining of the money was with the intent to permanently deprive the Government of the use and benefit of the money or to permanently appropriate it to his" }, { "docid": "12086714", "title": "", "text": "into one article what had been known as common law larceny, embezzlement, and obtaining by false pretenses. United States v. Antonelli, 35 M.J. 122 (C.M.A.1992); United States v. Vorda, 34 M.J. 725 (N.M.C.M.R.1991); Dean. The Manual for Courts-Martial, United States, 1984 (MCM), defines a false pretense under Article 121, UCMJ, as a false representation of a past or existing fact made by any act, word, symbol, or token. Paragraph 46e(l)(e), Part IV, MCM. A false pretense may also exist by silence or failure to correct a known misrepresentation. Dean. One who knows he is obtaining money by reason of a prior statement that, due to changed circumstances, now misrepresents a fact, and knowing that he is under a duty to report the changed circumstances, wrongfully obtains the money if he receives it with the intent to take advantage of the other party’s reliance upon the misrepresented fact. Vívenlo; Dean. Silence, therefore, is not always golden, and may constitute false representation under certain circumstances. United States v. Duffey, 37 M.J. 511 (A.F.C.M.R.1993). From the record before us, appellant clearly admitted the following: 1) that he had a duty to report his divorce to PSD and thus his resulting loss of entitlement to BAQ and VHA after 16 August 1991; 2) that he intentionally failed to report this event to PSD until late March, 1992, and thereby failed to prevent overpayment of the allowances; 3) that his intent in remaining silent over nearly an 8-month period was to take advantage of the government’s reliance on his earlier representation that he occupied off-base civilian housing and to forever keep the money to which he was not entitled. Record at 8-9, 12-13. Even though appellant made no affirmative misrepresentation on or after 16 August 1991, his silence constituted a false representation sufficient to establish a wrongful obtaining through a false pretense, i.e., that he was still married and entitled to the BAQ and VHA. Appellant has cited United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990) for the proposition that because there was no fraudulent inducement on his part the findings cannot stand. However, Watkins" }, { "docid": "19031398", "title": "", "text": "guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. We are not satisfied that the wrongfulness of the obtaining rose to the level of criminality required for a violation of Article 121. The appellee argues that the appellant was convicted of a wrongful obtaining, attempting thereby to distinguish this case from United States v. Watkins, 32 M.J. 527 (AC.M.R.1990). This theory of the wrongfulness of the obtaining is based on a perception of the appellant’s duty to report the overpayments to his command or the housing office. This Court perceives in this argument an internal inconsistency which creates a reasonable doubt as to the appellant’s guilt. At page 5 of the government’s brief, the appellee concedes that the appellant did not make any affirmative misrepresentations to obtain the BAQ/VHA. The appellee argues that the appellant’s silence constituted a false pretense, relying upon this Court’s decisions in United States v. Johnson, 39 M.J. 707 (N.M.C.M.R.1993), affirmed, 40 M.J. 318 (C.M.A.1994). In that case AA Johnson pleaded guilty to stealing BAQ/VHA, admitting that: (1) he had a duty to report to his command that he had gotten a divorce and moved back into the barracks, becoming no longer entitled to BAQ/VHA; (2) he intentionally failed to do that; and (3) he intended to permanently keep the money he obtained through the false pretense. We find the appellant’s case distinguishable on several bases. Disentitlement through divorce is factually distinct from disentitlement through moving into government housing. In the case of a divorce, no other agency has a duty to report to the command the changed circumstances. The government’s evidence in the appellant’s case indicates that the housing office had primary responsibility for reporting the changed circumstances to the appellant’s command. Record at 72. We are not persuaded by the evidence that the appellant had an affirmative duty to report to his command that he was no longer entitled to BAQ/VHA, before he became aware that the housing office had not reported it. Although the specification combines into a single specification twenty-two pay periods encompassing 11 months, we must examine the record to" }, { "docid": "11265719", "title": "", "text": "Ed., 1969). An individual who knows he is obtaining money by reason of a prior statement that now misrepresents a fact, and who receives that money with intent to take advantage of the other party’s reliance upon the misrepresented fact wrongfully obtains the money. Clarke v. People, 64 Colo. 164,171 P. 69 (1918); PERKINS at 311. His silence, with full knowledge of what is happening, is equivalent to a repetition of the statement at the very moment of acquisition of the money. PERKINS at 311. Electing a Theory Enactment of Article 121, UCMJ, removed the requirement to allege a specific theory of larceny. Sicley, 20 C.M.R. at 124. However, for a successful prosecution of larceny, the government must still prove the accused wrongfully took, obtained, or withheld certain property. MCM, Part IV, paragraph 46b(1)(a) (1984). If the trial counsel chooses the wrong theory and the record does not contain sufficient evidence to prove beyond a reasonable doubt the essential elements of one of the theories of larceny, the evidence will be insufficient to sustain guilt as a matter of law. United States v. Hart, 25 M.J. 143 (C.M.A.1987); Sicley, 20 C.M.R. at 126; United States v. Johnson, 30 M.J. 930 (A.C.M.R.1990); Article 66(c), UCMJ, 10 U.S.C. § 866(c). If the accused pleaded guilty and the evidence introduced and the accused’s guilty plea inquiry admissions are not adequate to establish the essential elements of larceny by wrongful taking, obtaining, or withholding, the plea will be improvident and must be set aside. Blackshire, at 502; Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 597; R.C.M. 910(c) and (e); MCM, Part IV, paragraph 46b (1984). Conclusion It is clear that the receipt or obtaining of military pay or allowances in excess of a particular military member’s entitlement is not larceny by wrongful withholding. We agree with our brethren in the Navy and the Army that the duty of a member of the armed forces to inform his service that he is receiving excess allowances or pay does not rise to the level of the fiduciary duty required for larceny by wrongful withholding." }, { "docid": "11265722", "title": "", "text": "wrongfully obtaining by false pretense. See United States v. Smith, 11 U.S.C.M.A. 321, 29 C.M.R. 137 (1960); Sicley, 20 C.M.R. at 126; Watkins, 32 M.J. at 529; Rhyns, 31 M.J. at 925; Johnson, 30 M.J. at 940; United States v. Boling, 46 C.M.R. 594 (A.C.M.R.1972); United States v. Walbert, 32 C.M.R. 945, 953 (A.F.B.R.1963), aff'd on other grounds, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963); MCM, Part IV, paragraph 46c(1)(e) (1984); PERKINS at 311. Under wrongful obtaining, payments in excess of entitlement are fraudulently induced by the false certification of the recipient. Smith, 29 C.M.R. at 142; Watkins, 32 M.J. at 529; Johnson, 30 M.J. at 940. Such a certification will serve as the false pretense that is the “effective and intentional cause of the obtaining.” Sicley, 20 C.M.R. at 126; MCM, Part IV, paragraph 46c(1)(e) (1984). Although more difficult, larceny by wrongfully obtaining may also be proven when a military member fails to correct a previous representation of status entitling him to additional allowances or pay. MCM, Part IV, paragraph 46c(1)(b), (d), and (e); PERKINS at. 311. The difficulty arises in determining whether the military member had the required criminal intent at the time he obtained the overpayments. Rhyns, 31 M.J. at 926; see also Sicley, 20 C.M.R. at 127; Blackshire, at 502; Watkins, 32 M.J. at 529. If the member had forgotten he had made an earlier certification and that he was receiving additional pay or allowances because of it, the prior certification would be the effective, but not the intentional, cause of the obtaining. MCM, Part IV, paragraph 46c(1)(e); PERKINS, n. 93 at 311. In the present case, the entire theory of the government’s case was that appellant had stolen the BAQ and BAS monies by wrongfully withholding them. The mili tary judge used this theory in conducting the guilty plea inquiry and appellant did not admit to any offense other than larceny by wrongful withholding. We find appellant’s pleas to both specifications of larceny to be improvident. The findings of guilty to specifications 1 and 2 of the charge are set aside. A rehearing may be" }, { "docid": "7471116", "title": "", "text": "benefit, but was still mindful that he would eventually be required to reimburse the government. In September 1988, temptation overcame wisdom when the appellant falsely certified to military authorities that he was still living in civilian housing and thus entitled to BAQ and VHA. The appellant stated that he did this in order to conceal the fact that he was not entitled to the housing allowances. The submission of the false certificate had the effect of perpetuating the unauthorized payments. The appellant now contends that his pleas of guilty were improvident and that the fine and the provision for confinement for nonpayment, as approved by the convening authority, violate the sentence limitations provided for in his pretrial agreement with the convening authority. We agree in part. We note first, that in view of our holding in United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990), the initial receipt and retention of the funds by the appellant would not, as a matter of law, have been categorized as criminal and would not have supported a plea of guilty of wrongful appropriation. Likewise, the filing of the false housing certificate by the appellant in September 1988, would not make him criminally liable for any payments received prior to that date. The appellant neither wrongfully obtained the payments nor possessed a fiduciary duty to return or report them at the time they were made to him. See United States v. Dean, 33 M.J. 505 (A.F.C.M.R. 1991); United States v. Blackshire, 33 M.J. 501 (A.F.C.M.R.1991); United States v. Harrison, 32 M.J. 1027 (A.F.C.M.R.1991); Watkins, 32 M.J. 527. Although the appellant became indebted to the government for the payments he received prior to September 1988, his obligation to make repayment constitutes a civil liability and does not equate to the criminal offense of wrongful appropriation under Article 121, UCMJ. See United States v. Mervine, 26 M.J. 482, 484 (C.M.A. 1988); Dean, 33 M.J. at 511; Watkins, 32 M.J. at 529; United States v. Johnson, 30 M.J. 930, 939 n. 8 (A.C.M.R.1990). “A debt- or does not withhold specific property from the possession of a creditor by" }, { "docid": "11368394", "title": "", "text": "did his best to change his entitlements. At trial and in the guilty plea inquiry, we find nothing to persuade us that he possessed the requisite criminal intent — the animus furandi. See 50 Am.Jur. Larceny Sec. 26 (1970); 52A C.J.S. Larceny Sec. 29 (1968); Sapp v. State, 157 Fla. 605, 26 So.2d 646 (1946) (extensive cites); Cooper v. Kentucky, 110 Ky. 123, 60 S.W. 938 (Ky.1901) (review of early English and American cases); see also Clark and Marshall Crimes (6th ed. 1958) 746-747, 751-752. Was Blackshire’s acceptance of later payments criminal? The issue is closer; one might argue each payment was a separate offense and that each later taking suggests a larcenous intent. We reject that theory. A permissible act does not ripen into an illegal one by the passage of time. Some authorities even say that a subsequent “evil mind” or criminal intent will not criminalize originally innocent conduct. See 50 Am.Jur. Larceny Sec. 26; Clark at 751. The appellant’s willingness to admit his guilt appears predicated on his belief that he had some legal duty to inform Finance to stop the payments each time he received a paycheck. Like the Army Court in Watkins, we have found no cases which hold that individuals who fail to inform military authorities of an overpayment are criminally liable under Article 121, UCMJ, 10 U.S.C. § 921. See United States v. Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 593; United States v. Lally, 54 B.R. 151 (1945); see also United States v. Roark, 12 U.S.C.M.A. 477, 31 C.M.R. 64 (1961); United States v. Chaney, 9 U.S.C.M.A. 289, 26 C.M.R. 69 (1958); United States v. Parker, 28 C.M.R. 785 (A.F.C.M.R.1959). We find a dearth of usable precedents in Federal or state jurisdictions. Recertification in 1989 After two years of receiving extra allowances, the appellant was asked to complete Air Force Form 987, a recertification of pay, in March 1989. At that time, Blackshire created a false record by saying that he had not occupied government quarters in the prior two years. We have no hesitation of finding him guilty of" }, { "docid": "12136295", "title": "", "text": "amounts to a larceny. Specifically, the government must prove that the accused: “wrongfully took, obtained, or withheld certain property from the possession of the owner ...” MCM, Part IV, paragraph 46b(l)(a) (1984) (emphasis added); Article 121(a), UCMJ; Antonelli, 35 M.J. at 126; O’Hara, 33 C.M.R. at 381. Problems arise with larceny convictions when the evidence at trial or the accused’s admissions in a guilty plea inquiry do not establish that the accused engaged in conduct that amounts to any larceny under Article 121, i.e., no wrongful taking, obtaining, or withholding of property of another. See, e.g., Mervine, 26 M.J. at 483-84; United States v. Meeks, 32 M.J. 1033 (A.F.C.M.R.1991); United States v. Harrison, 32 M.J. 1027 (A.F.C.M.R.1991); United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990). When a military member’s larceny conviction is challenged upon appeal for a failure to state an offense or sufficiency of the evidence, the role of the appellate court “is to determine whether an accused’s conduct as charged and proved could have been punished under any of the three predicate crimes encompassed by Article 121.” Antonelli, 35 M.J. at 126. In this case, our role is simplified by the fact that the government elected a specific theory of larceny for the contested portion of the offense. Therefore we must determine whether the government proved appellant committed a larceny by wrongfully withholding the “with dependents” rate BAQ and VHA he received during the period 1 December 1986 through 3 November 1987. III. Larceny by Wrongful Withholding. All three forms of larceny encompassed by Article 121 require that the property stolen belong to another. The key difference between wrongful withholding and wrongful taking or obtaining by false pretense is that the wrongful withholder originally acquires the stolen property in some lawful manner. Antonelli, 35 M.J. at 127; W. LaFave and A. Scott, 2 Substantive Criminal Law §§ 8.2 and 8.6 (1986); United States v. Rapolla, 34 M.J. 1268 (A.F.C.M.R.1992); Neff, 34 M.J. at 1201-02. This offense has its origin in embezzlement and conversion, and the property is lawfully acquired through some relationship between the owner of the property" }, { "docid": "11265721", "title": "", "text": "Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 595. Absent this fiduciary duty, a failure to return or report overpayment of pay or allowances does not constitute a larceny by wrongful withholding. Sicley, 20 C.M.R. at 125; Blackshire, at 502; Watkins, 32 M.J. at 529; Castillo, 18 M.J. at 596. The military member will be indebted to the government for the overpayment and is obligated to make repayment, but such a debtor relationship and a civil liability does not equate to larceny. Mervine, 26 M.J. at 483; Watkins, 32 M.J. at 529; Johnson, 30 M.J. at 939 n. 8; MCM, Part IV, paragraph 46c(1)(b) (1984). Even if the overpayment is due to a misrepresentation by the military member, a wrongful withholding does not result without the required fiduciary or custodial relationship. Hubbard, 28 M.J. at 205; McFarland, 23 C.M.R. at 270; United States v. Watkins, 32 M.J. 527, 529 (A.C.M.R.1990); Castillo, 18 M.J. at 597. The criminal prosecution of larceny for receipt of excess pay or allowances should be based on the theory of wrongfully obtaining by false pretense. See United States v. Smith, 11 U.S.C.M.A. 321, 29 C.M.R. 137 (1960); Sicley, 20 C.M.R. at 126; Watkins, 32 M.J. at 529; Rhyns, 31 M.J. at 925; Johnson, 30 M.J. at 940; United States v. Boling, 46 C.M.R. 594 (A.C.M.R.1972); United States v. Walbert, 32 C.M.R. 945, 953 (A.F.B.R.1963), aff'd on other grounds, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963); MCM, Part IV, paragraph 46c(1)(e) (1984); PERKINS at 311. Under wrongful obtaining, payments in excess of entitlement are fraudulently induced by the false certification of the recipient. Smith, 29 C.M.R. at 142; Watkins, 32 M.J. at 529; Johnson, 30 M.J. at 940. Such a certification will serve as the false pretense that is the “effective and intentional cause of the obtaining.” Sicley, 20 C.M.R. at 126; MCM, Part IV, paragraph 46c(1)(e) (1984). Although more difficult, larceny by wrongfully obtaining may also be proven when a military member fails to correct a previous representation of status entitling him to additional allowances or pay. MCM, Part IV, paragraph 46c(1)(b), (d), and (e);" } ]